Public Bill Committee

[Sir Nicholas Winterton in the Chair]

Written evidence to be reported to the House

CJ&I 405 Backlash
CJ&I 406 Ministry of Justice
CJ&I 407 The Spanner Trust
CJ&I 408 Philip Morris Limited

Schedule 21

Minor and consequential amendments

Amendment proposed [this day]: No. 237 in schedule 21, page 223, line 19, at end insert—

‘Football Spectators Act 1989 (c. 37)
6A In paragraph 1(c), (k) and (q) of Schedule 1 to the Football Spectators Act 1989 (offences)—
(a) for “Part III” substitute “Part 3 or 3A”; and
(b) for “(racial hatred)” substitute “(hatred by reference to race etc)”.

Broadcasting Act 1990 (c. 42)
6B (1) Section 167 of the Broadcasting Act 1990 (power to make copies of recordings) is amended as follows.
(2) In subsection (4)(b), after “section 24” insert “or 29H”.
(3) In subsection (5)(b), after “section 22” insert “or 29F”.’.

Question again proposed, That the amendment be made.

Nicholas Winterton: I remind hon. Members that with this it will be convenient to discuss the following: Government amendments Nos. 246, 252 and 221.
Government new clause 34—Hatred on the grounds of sexual orientation.
New clause 49—Hatred on grounds of sexual orientation—
‘(1) Save where expressly limited by subsection (2) below, nothing in this section affects any person’s right—
(a) to respect for private and family life, his home and his correspondence;
(b) to freedom of thought, conscience and religion, including the right to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance;
(c) to freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas without interference by any person or public authority;
(d) to freedom of peaceful assembly and to freedom of association with others.
(2) It is an offence whether by words or acts for any person to do, or to incite any other person to do, any act with the intention of causing physical or mental harm to any person or group of persons on the basis of hatred of their sexual orientation or presumed sexual orientation.
(3) In this section “words” and “acts” include the making known to any third party of oral, written or printed words by any method of publication including electronic, wireless or internet media, and an offence under this section may be committed in a public or a private place.
(4) Where a body corporate is guilty of an offence under this section and it is shown that the offence was committed with the consent or connivance of a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(5) Where the affairs of the body corporate are managed by its members, subsection (4) applies in relation to the acts and defaults of a member in connection with his functions of management as it applies to a director.
(6) No criminal proceedings under this section may be initiated or continued save by the Crown and with the permission of the Attorney General.
(7) A person guilty of an offence under this section shall be liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both; or
(b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.’.
Government new schedule 2—Hatred on the grounds of sexual orientation—
1 Part 3A of the Public Order Act 1986 (c. 64) (hatred against persons on religious grounds) has effect subject to the following amendments.
2 In the heading for Part 3A at the end insert “or grounds of sexual orientation”.
3 In the italic cross-heading before section 29A at the end insert “and “hatred on the grounds of sexual orientation””.
4 After that section insert—
“29AB Meaning of “hatred on the grounds of sexual orientation”
In this Part “hatred on the grounds of sexual orientation” means hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both).”
5 In the italic cross-heading before section 29B at the end insert “or hatred on the grounds of sexual orientation”.
6 (1) Section 29B (use of words or behaviour or display of written material) is amended as follows.
(2) In subsection (1), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
(3) Omit subsection (3).
7 In section 29C(1) (publishing or distributing written material), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
8 In section 29D(1) (public performance of play), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
9 In section 29E(1) (distributing, showing or playing a recording), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
10 In section 29F(1) (broadcasting or including programme in programme service), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
11 In section 29G(1) (possession of inflammatory material), for “religious hatred to be stirred up thereby” substitute “thereby to stir up religious hatred or hatred on the grounds of sexual orientation”.
12 (1) Section 29H (powers of entry and search) is amended as follows.
(2) In subsection (1), omit “in England and Wales”.
(3) Omit subsection (2).
13 (1) Section 29I (power to order forfeiture) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), omit “in the case of an order made in proceedings in England and Wales,”; and
(b) omit paragraph (b).
(3) Omit subsection (4).
14 In section 29K(1) (savings for reports of parliamentary or judicial proceedings), for “or in the Scottish Parliament” substitute “, in the Scottish Parliament or in the National Assembly for Wales”.
15 (1) Section 29L (procedure and punishment) is amended as follows.
(2) In subsections (1) and (2), omit “in England and Wales”.
(3) In subsection (3), in paragraph (b), for “six months” substitute “12 months”.
(4) After that subsection insert—
“(4) In subsection (3)(b) the reference to 12 months shall be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003.”
16 In section 29N (interpretation), after the definition of “dwelling” insert—
““hatred on the grounds of sexual orientation” has the meaning given by section 29AB;”.’.
And the following amendments thereto: (a), after paragraph 6, sub-paragraph (2) insert—
‘(2A) After subsection (1) insert—
“(1A) An action under subsection (1) may include any action intended to equate sexual orientation with a propensity or intention to commit an imprisonable offence.”’.
(b), after paragraph 13 insert—
‘(13A) After section 29I insert—
“29IA European Convention on Human Rights
Unless expressly limited by any provision within this Part, no right under Article 10 of the European Convention on Human Rights shall be affected.”’.
When we adjourned at 25 minutes past 10 this morning, which seems only a minute ago, the hon. Member for Kettering was on his feet, and I now ask him to resume his address on amendment No. 237.

Philip Hollobone: —as to the Minister’s intentions with regard to how the legislation would affect the gentleman who was protesting in Parliament square. In that case, the gentleman was shouting that he felt that homosexuals could pervert children. Mr. Summerskill made it quite clear in his evidence that he felt that that was incitement, and that any legislation brought forward by the Government ought to make a prosecution of that gentleman rather more straightforward. Could there not be a situation whereby people quote from religious transcripts in such a way that others would be offended by it? Although they might not be trying to incite anyone to violence, huge offence could be caused nevertheless.

Maria Eagle: I tried to make it clear that intention to incite hatred was a key part of the offence as drafted. Does that not answer the hon. Gentleman’s point?

Philip Hollobone: It does not really answer my point. It may be that the individual concerned does not intend to cause an offence, under the terms of the new legislation, but that others may—

Maria Eagle: He does not have to intend to cause an offence, but he has to intend to incite hatred. It is quite clear.

Philip Hollobone: It comes down to a debate about what is inciting hatred. To give an example, I will quote a reference made by Mr. Summerskill, in his evidence, from the Bible, in Leviticus, chapter 20, verse 13:
“If a man lies with a male as he lies with a woman, both of them have committed an abomination. They shall surely be put to death. Their blood shall be upon them.”
If someone were parading up and down the street outside with a banner displaying that quote from the Bible, while a legitimate homosexual meeting was going on in a nearby building, could not a prosecution for incitement to hatred be brought under the new legislation? The person doing the demonstrating is exercising their religious beliefs, which we may or may not share. The huge worry among evangelical Christian groups, Islamic groups and those of other faiths is that the legitimate, though perhaps sometimes offensive, expression of their beliefs, could be caught by the new legislation.
It is not only those of us with a religious perspective who have cause for concern about the new legislation, but also gay people. I find myself, rather surprisingly, quoting Mr. Peter Tatchell, who is a well known gay rights activist and has developed a considerable reputation for his activities. He says:
“If there are going to be laws against inciting hatred, they should be universal and prohibit all incitements to hatred—not just some. Singling out race hate and homo hate for special legal penalties strikes me as unfair and undesirable. It creates resentment among social groups who are not protected by such laws, which is bad for community cohesion. My view is very simple: everyone should be equal before the law, in which case all incitements of hatred should be an offence.”
Mr. Tatchell then goes on to define incitement, which is the point that the Minister has just made. He says:
“After all, similar laws have been abused in the recent past.”
He cites the example of an Oxford student who was arrested and fined under the public disorder laws for making a joke about a policeman’s horse being gay. The officers construed that joke as a homophobic remark and named the student under the already existing wide-sweep public order legislation, which bans behaviour that is likely to cause harassment, alarm or distress. He says:
“It is not clear whether it was the police officer or the horse that was supposedly offended by the student’s off-the-cuff quip.”
Then we have evidence in the newspapers this week that the Attorney-General herself may have some private concerns about the appropriateness of this legislation. It has been reported—I would welcome the Minister’s response to this—that Baroness Scotland has privately expressed concern about the controversial legislation being brought before us. The article in The Times states that:
“Baroness Scotland, who is also determined to crack down on the problem of homophobic behaviour, believes that there are sufficient laws on the statute book to deal with this issue.”
The article goes on to state:
“She is understood to have told colleagues that she wants to see more successful prosecutions in this area, but is unconvinced that a new law is the way to do it and would prefer to focus on existing procedures.”
The distinguished correspondent and former Member of Parliament, Mathew Parris, who is a homosexual himself, stated in The Times newspaper:
“Some groups may be so weak and fragile as to need the law’s protection from hateful speech. I’d like to think that we gays are no longer among them.”
From the entertainment profession, Rowan Atkinson has also criticised the proposals. He said that society was already “working things out” without the need for any legislative interference. He is concerned, as am I, about the extendable nature of the legislation because it could be extended in future to other groups. Rowan Atkinson cites as an example, “people with big ears”.
This week, both the Church of England and the Catholic Bishops’ Conference of England and Wales have commented on the proposals before us. In a joint initiative, the Churches stated:
“Our main concern is that any legislation on incitement to hatred on the grounds of sexual orientation permits the expression of traditional Christian (and other) opinions on sexual behaviour and consequent criticisms of particular forms of behaviour or lifestyle. As with incitement to religious hatred, we believe it is vital that there should be the maximum possible clarity about what is forbidden and what is permitted. Christians engaged in teaching or preaching and those seeking to act and accord with Christian convictions in their daily lives need to be assured that the expression of strong opinions on marriage and sexuality will not be illegal.”
In their submission, they point out the possible chilling effect on free speech, which formed much of our previous debates on the religious hatred legislation. They say:
“Uncertainty in the law has the effect of inhibiting behaviour which may not in fact be illegal.”
They call, as I do, for an exploration of the relevant safeguards, along with those included in the law of incitement to racial hatred, namely the famous section 29J, which this legislation is screaming out for.
I am also disturbed that a lot of the interpretation of this new legislation will be left in the hands of police officers, who will be faced with the confusing prospect of having, on the one hand, laws passed in this place under the Racial and Religious Hatred Act 2006, which contains a section 29J that explicitly states that there is not an offence as far as free speech is concerned, and the proposed legislation before us today that does not. Police officers might well be confused by that.
The guidance from the Association of Chief Police Officers on hate incident reporting procedure describes a homophobic incident as any
“incident which is perceived to be homophobic by the victim or another person.”
On the prosecution of cases of homophobic crime, the Crown Prosecution Service guidance defines homophobia as
“A fear of or a dislike directed towards lesbian, gay or bisexual people, or a fear of or dislike directed towards their perceived lifestyle, culture or characteristics, whether or not any specific lesbian, gay or bisexual person has that lifestyle or characteristic.”
The subjective emphasis of those definitions coupled with the growing pressure placed on the authorities to respond to such complaints will lead to significant problems. By emphasising the perception of the victim or any other person in defining something as an incident, regardless of the consideration of context or content that an objective valuation could make, there is a danger that a semblance of reasonableness could be stripped away.
It is suggested that the Crown Prosecution Service will provide a safeguard as it will only bring a case if there is a reasonable prospect of conviction and if that prosecution is in the public interest. I am disturbed, however, by the published guidance of the CPS. There are real concerns about the chilling effect on free speech. I shall cite examples of how legislation has been affected by differing interpretations on the street.
In 2005, a Christian couple—Joe and Helen Roberts—were interrogated by the police because they complained about their local council’s gay rights policy. The police said that they were responding to a reported homophobic incident under the guidelines. They later admitted that no crime had been committed and, following legal action by the Roberts, the police and the council issued a public apology. It all worked out in the end, but that is a rather alarming example of the chilling effect of legislation such as that proposed today.
The Bishop of Chester was investigated by the Cheshire constabulary in November 2003, after he told his local newspaper of research showing that some homosexuals reoriented to heterosexuality. The police passed a file to the Crown Prosecution Service, which decided not to prosecute. The Cheshire constabulary issued the following statement:
“The Crown Prosecution Service has been consulted with at length, and Cheshire Police are satisfied that no criminal offences have been committed, as current public order legislation does not provide specific offences based on sexuality.”
Again, it all worked out in the end, but that is another alarming example of the chilling effect of such a law.
In 2004, the Christian Union of the university of Cambridge was reported to the police following its distribution of St. John’s gospel to students and its hosting of an evangelical meeting at which the dean of Sydney cathedral put forward a traditional biblical view on homosexuality. In December 2005, police questioned the family values campaigner, Lynette Burrows, after she expressed the view on a radio programme that homosexual men may not be suitable for raising children. Police telephoned saying that they were investigating a reported homophobic incident.
I do not believe that the Government are malevolent about matters but, however well intentioned the legislation, it will give rise to alarming chilling effects on the way in which people with profound religious beliefs can espouse their views. Our nation does not require the measure. Enough legislation is already on the statute book to deal with the vile incidents of homophobic hate crime.
My argument is that our present law is not used effectively enough. One example of that is in respect of Northern Ireland. The Minister will claim that that is a different jurisdiction, but she has more experience of the affairs in that Province than I have, and she may well have been responsible for introducing the law to which I am referring—[Interruption.] I am told that it was the Minister of State, Ministry of Justice, my right hon. Friend the Member for Delyn. However, if this legislation is so wonderful—if it is really meant to do what it says on the tin—why have there been no prosecutions in Northern Ireland in respect of offensive rap lyrics against homosexuals? Why are the Government not using the legislation that they have already introduced to take action against such vile crimes?
I am worried that we are putting another piece of legislation on to the statute book that will have a profound chilling effect on people who hold religious beliefs, that will damp free speech, and that will be another case of thought crime. Trying to make incitement to hatred of specific groups a criminal offence is the wrong way to go. I agree that we should consider making it an offence to incite hatred across the board, but picking that off group by group is the wrong way to go: it will set one group against another and will not help community cohesion but damage it.

Maria Eagle: We have had a good debate, during the morning sitting and concluding just now, about this issue and I think that most of the concerns from all sides of the debate have been covered. I want to deal with amendments (a) and (b) to new schedule 2 and new clause 49, tabled by the hon. and learned Member for Harborough. I will not re-rehearse the original Government amendment, which I dealt with this morning.
The hon. Member for Somerton and Frome highlighted a real problem with amendment (a) to new schedule 2 and I have a lot of sympathy with the concerns that he has attempted to formulate into a legislative phrase. He was characteristically modest in suggesting, before I had the chance to do so, that his amendments were defective or not as good as they might have been if he had been a parliamentary draftsman. However, he has not done a bad job.
My concern about his trying to formulate the issue as he has done is more about what it would do to the rest of the law. He said clearly that he thought that the Government amendments and new clauses pitched the offence at about the right level. He was particularly concerned about inhibiting free speech and thought that pitching the offence at the level of threatening words and behaviour with an intention to incite hatred was right. However, our problem is that amendment (a) goes further than threatening words. On one hand the hon. Gentleman says that he believes that the offence is pitched correctly in the Government amendments—the new clauses and new schedule—but on the other hand he says that he wants a little bit extra, extending the provision to what might be characterised as insulting, abusive language, which we have specifically excluded from the offence. That is our difficulty and I think that the hon. Gentleman recognises that. He wished to highlight a particular concern, which is that gay, lesbian and bisexual people are sometimes portrayed by those who wish to incite hatred as paedophiles who intend to corrupt and harm the young.

David Heath: I am grateful to the Minister for the care with which she has responded to my suggestion. I want to make it clear that I am not trying to include language that is simply offensive: it has to be construed within the context of the general offence. In other words, it has to be threatening, the context has to be such that it is threatening and it has to have the intent of incitement to hatred. The fact that there is a subset within that group means that it does not extend the provision, but simply identifies a particular sort of language that is intended to incite hatred—which I am convinced it is.

Maria Eagle: I understand the point that the hon. Gentleman is trying to make and I have some sympathy with it. However, it is important that there is clarity: I think that all Committee members agree with that. As currently cast, the offence requires threatening words or behaviour. The hon. Gentleman is now talking about a threatening context, which is a slightly different thing. As the provision is currently drafted, the words or behaviour have to be threatening and there has to be an intention to incite in order for the offence to be made out.
It is undoubtedly the case that the kind of allegations to which the hon. Gentleman referred are insulting, demeaning, abusive and untrue, and might also amount to defamation in certain circumstances, in which case that could be dealt with by the civil courts. However, they are not necessarily threatening of themselves. That is the difficulty. The Government have confined the proposals to words or behaviour that are threatening or intended to stir up hatred. We think that that strikes the right balance between dealing with stirring up hatred and securing freedom of speech. Our proposed offences interfere with freedom of speech only when there is a need to do so to protect vulnerable groups and preserve public order.
I have every sympathy with the concerns that give rise to the hon. Gentleman’s amendment. However, we are trying to be very clear about the boundaries of the offence so as to provide a proper balance with people’s freedom to say what they think, and I believe that the amendment would make them less clear. That is why I cannot agree to it.
On amendment (b), the hon. Gentleman tried to indicate that his wording was not perfect, but actually it is otiose—I always try to get the word “otiose” into Public Bill Committee deliberations at least once. The Human Rights Act already provides the safeguard that he seeks, because the Bill as a whole has to be compatible with that Act. The difficulty with the express inclusion of such a provision—the same point applies to the hon. Gentleman’s proposed new clause 49, whose purpose he has explained—is that, if the Human Rights Act is generally implicit and is certified as applicable, express inclusion presents an issue for judges who try to construe the express provision.

Edward Garnier: It does not if it is otiose. However, the decline in the respect accorded to Ministers’ rubber-stamping of Bills is now self-evident. Nobody really thinks that, when a Minister stamps a Bill to say that in their view the provisions of the Bill are compatible with the convention, they have seriously applied their mind to that question. It is just part of the printing on the front of the Bill. That might be grossly unfair, but it is what the public now think, and it is also certainly what many Members of Parliament think, so whether it is fair is neither here nor there.
As regards express mention of things that the Minister says are implicit, she is perfectly right that the convention is now justiciable under our law and that our courts must bear it in mind. However, not every judge and magistrate has the convention in the forefront of their mind. Indeed, I do not think I am being controversial if I say that not every judge and magistrate will even have read the convention. That might be the most appalling admission to make—indeed, I do not know how I dare say such a thing. However, for that reason I think that it is quite important occasionally to remind those who have to implement the law of what the law is.

Maria Eagle: I understand the hon. and learned Gentleman’s point. On the ministerial declaration, Ministers have to turn their mind to the question of compatibility. They are advised by officials and lawyers on compatibility, and I can assure the hon. and learned Gentleman that, in my experience as a Minister, that advice has been both seriously given and seriously taken. I do not know of any Minister who would ignore advice from departmental lawyers that suggested that any part of a Bill whose compatibility he was about to certify was in fact incompatible. He would not be in a position to do that. So this matter is taken seriously, although perhaps the hon. and learned Gentleman’s cynicism is born out of longer years in Opposition; he may become a lot more cynical before that period in Opposition ends.

David Heath: I am never cynical.
The hon. Lady cannot have it both ways. Amendment (b) cannot be otiose and give difficulties to the judge in construing the Bill; either it affects the law or it does not. If it is unnecessary and makes no difference to the law, there is no difficulty in construing it. If it does make a difference, it is achieving the effect that I want it to have, which is to ensure that free speech is protected in every other circumstance except the circumstance that is specified within the Bill.

Maria Eagle: It makes no practical difference to the law, but it presents a problem in statutory construction; that is what I am saying.

David Heath: Why?

Maria Eagle: I have tried to explain, but I do not want to get tempted down the highways and byways of this matter. In our view, it is not necessary expressly to put in different parts of the European convention that are implicit in the legislation and it would be bad practice in draughtsmanship to do so. I understand the points that the hon. and learned Member for Harborough makes about having judges read the law now and then. I am sure that most judges do so; one would hope that all of them do. Anyway, that is my point in respect of amendment (b). He might not agree with it; that is up to him.
Let me turn to new clause 49, with which I had considerable sympathy, in that the hon. Member for Enfield, Southgate wished to see a clear and succinct statement of the law. It is certainly a cause of some frustration to me that the way in which the amendments have been drafted by parliamentary counsel, although proper and correct, does not make it easy to read and understand precisely what the law says, if the Committee agrees to these amendments. That is why I have tried to be extremely clear in setting out what the law means and that is why I have said on a number of occasions during the debate that we will be issuing guidance, because clarity is important.
The hon. Gentleman has set out and spoken to the new clause with some aplomb and he has suggested why he set it out in the way that he has. As I say, I have some sympathy for it. Were we starting with an empty book, I would be much more willing to take on board what he has said, but because we already have law relating to incitement in similar circumstances it could cause a lot of problems if we started to cast a particular aspect of the law in completely different terms to the way in which similar offences are cast.
So, while I have some sympathy with new clause 49, that is my basic difficulty in being able to accept it. I am sure that the hon. Gentleman will understand my point. It is really for that reason that I am not able to take on board new clause 49 completely. Many of the offences that he sets out and that he spoke to with clarity earlier this morning are already on the statute book in other places and, as I have said, we are not starting with a blank statute book. That is my point.

David Burrowes: Does the Minister have some sympathy with our seeking to have an alternative language and framing of the law, particularly given the public order legislation? When that goes down to the officer on the beat, they see a range of offences from subsection (5) onwards and, as far as they are concerned, they see them in the language of perception, of how people perceive an offence to have affected them. That causes concerns about the application of the law.

Maria Eagle: I do have some sympathy with new clause 49; it touches upon the increasing complexity of the criminal law across a range of areas, and the fact that we have a common law and statute combined in a way that means that we must give some thought as to how similar offences and previous offences are cast. So I have some sympathy, but I think that the way forward that the Government have set out is the most practical way forward. I am not saying that I do not have sympathy for the way in which the hon. Gentleman is pleading for clarity; I have tried to provide that clarity in a slightly different way.

Philip Hollobone: I am glad that the Minister has sympathy with the view of my hon. Friend the Member for Enfield, Southgate. However, is this not, therefore, a charter for people to be even more offended—to be outraged in fact? The more fuss that is made, and the more hurt that someone supposedly felt, the greater the chance that they can persuade the police to take action, given the guidance issued by the Association of Chief Police Officers and the Crown Prosecution Service.

Maria Eagle: I do not agree. The Committee has made common cause on the importance of freedom of speech, which nobody wants to impinge on more than is necessary. I think that I have tried to be extremely clear on where the offences would bite. I would have understood many of the hon. Gentleman’s points better if, like others, he had made them before the Government amendments, new clause and schedule had been selected. The offence has been pitched at the highest level by referring to the use of threatening words and behaviour intended to incite hatred.
I have discussed that matter in detail with many organisations on all sides of the argument since we made it clear that we would go down this path. The way in which the Government have cast the offence has been widely welcomed and has reassured many of those concerned. The briefing to the Committee from the department for Christian Responsibility and Citizenship, the Catholic Bishops’ Conference of England and Wales and the Church of England’s mission and public affairs division stated:
“We welcome the narrow focus of the amendment on the use of threatening words or behaviour which are used with the intention of stirring up hatred. This goes a considerable way towards meeting our concerns”.
That has also been my experience in talking to those in the theatrical profession who have also expressed concerns. We think, therefore, that the offence is pitched correctly and that it will provide the necessary reassurance.
Some of the more lurid examples used by the hon. Member for Kettering would clearly fall outside the ambit of the legislation. He spoke as though abusive and threatening words and behaviour would be caught—that sounds more like elements of the race hate offence. Were the amendment worded in that way, I would have much more sympathy with some of his concerns. However, such matters will not be caught, and he should not suggest that they are.
The hon. Gentleman referred to the Attorney-General, who was reported in The Times, on 26 November, as being “set to scupper plans to make gay hate a crime”—that is what the headline said. That proves that we cannot believe everything that we read in the newspapers, given that the Government amendments, which have to be cleared across Government, were tabled on 14 November. Clearly, the Attorney-General is perfectly happy with the amendments and the offence as it has been cast.

Philip Hollobone: The Minister was kind enough to mention the submission from the Catholic and Anglican Churches, but surprisingly she did not go on to mention their subsequent submission, in which they say that they believe that it would be helpful for the Committee to explore safeguards along the lines of those in section 29J of the Public Order Act 1986. They go on to suggest a possible wording. The Minister’s explanation to the Committee is correct, but she did not indicate the Churches’ further concerns. They strongly believe that provisions such as those in section 29J of the 1986 Act should be included in the Bill.

Maria Eagle: We do not believe that that would be helpful. The offence has been pitched at the highest level. That is the appropriate way of proceeding. On that basis, I would oppose amendments (a) and (b), and new clause 49, and commend to the Committee the Government amendments, new clause and new schedule.

Amendment agreed to.

David Hanson: I beg to move amendment No. 238, in schedule 21, page 223, line 32, at end insert—
‘(5) Sub-paragraph (4) extends to England and Wales and Northern Ireland only.’.

Nicholas Winterton: With this it will be convenient to discuss the following:
Government amendments Nos. 217, 219, 220, 375 and 223
Government new clause 85—Amendments to armed forces legislation.
Government new schedule 11—‘Amendments to armed forces legislation.

David Hanson: I do not believe that I need to detain the Committee for long. The amendments all make minor and technical changes to the extent and commencement provisions in the Bill.

Amendment agreed to.

Amendments made: No. 239, in schedule 21, page 224, line 4, at end insert—
‘(4) After paragraph (k) insert—
“(l) the provision of support for children and young persons who are subject to a violent offender order or an interim violent offender order (within the meaning of Part 8 of the Criminal Justice and Immigration Act 2008).”’.
No. 372, in schedule 21, page 224, line 4, at end insert—

‘Youth Justice and Criminal Evidence Act 1999 (c. 23)
8A The Youth Justice and Criminal Evidence Act 1999 has effect subject to the following amendments.
8B (1) Section 35 (child complainants and other child witnesses) is amended as follows.
(2) In subsection (3) (offences to which section applies), in paragraph (a)—
(a) before sub-paragraph (v) insert—
“(iva) any of sections 33 to 36 of the Sexual Offences Act 1956,”; and
(b) in sub-paragraph (vi), at end insert “or any relevant superseded enactment”.
(3) After that subsection insert—
“(3A) In subsection (3)(a)(vi) “relevant superseded enactment” means—
(a) any of sections 1 to 32 of the Sexual Offences Act 1956;
(b) the Indecency with Children Act 1960;
(c) the Sexual Offences Act 1967;
(d) section 54 of the Criminal Law Act 1977.”
8C (1) Section 62 (meaning of “sexual offence” and other references to offences) is amended as follows.
(2) In subsection (1) at end insert “or any relevant superseded offence”.
(3) After that subsection insert—
“(1A) In subsection (1) “relevant superseded offence” means—
(a) rape or burglary with intent to rape;
(b) an offence under any of sections 2 to 12 and 14 to 17 of the Sexual Offences Act 1956 (unlawful intercourse, indecent assault, forcible abduction etc.);
(c) an offence under section 128 of the Mental Health Act 1959 (unlawful intercourse with person receiving treatment for mental disorder by member of hospital staff etc.);
(d) an offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14);
(e) an offence under section 54 of the Criminal Law Act 1977 (incitement of child under 16 to commit incest).”
8D The amendments made by paragraphs 8A to 8C are deemed to have had effect as from 1 May 2004.
8E Where an order under section 61 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (application of Part 2 of Act to service courts) makes provision as regards the application of any provision of section 35 or 62 of that Act which is amended or inserted by paragraph 8B or 8C, the order may have effect in relation to times before the making of the order.’.
No. 55, in schedule 21, page 224, leave out line 6 and insert—
‘8A The Powers of Criminal Courts (Sentencing) Act 2000 has effect subject to the following amendments.
9 In section 19(4)’.
No. 56, in schedule 21, page 224, line 10, at end insert—
‘9A In section 92 (detention under sections 90 and 91: place of detention etc.) omit subsection (3).’.
No. 179, in schedule 21, page 224, line 10, at end insert—
‘9B In section 116 (power to order return to prison where offence committed during original sentence), in subsection (7), for “section 84 above” substitute “section 265 of the Criminal Justice Act 2003 (restriction on consecutive sentences for released prisoners)”.’.
No. 240, in schedule 21, page 224, leave out lines 18 to 21.
No. 241, in schedule 21, page 224, line 23, leave out paragraph 12 and insert—
‘12 The Sexual Offences Act 2003 has effect subject to the following amendments.
12A (1) In section 133(1) (interpretation), in paragraph (a) of the definition of “cautioned”, for “by a police officer” substitute “(or, in Northern Ireland, cautioned by a police officer)”.
(2) This paragraph extends to England and Wales and Northern Ireland only.’.
No. 242, in schedule 21, page 224, line 27, at end insert—
‘12B (1) In section 138 (orders and regulations), at the end insert—
“(4) Orders or regulations made by the Secretary of State under this Act may—
(a) make different provision for different purposes;
(b) include supplementary, incidental, consequential, transitional, transitory or saving provisions.”
(2) The amendment made by sub-paragraph (1), and the repeals in Part 3 of Schedule 23 of sections 86(4) and 87(6) of the Sexual Offences Act 2003 (which are consequential on that amendment), extend to England and Wales and Northern Ireland only.’.
No. 243, in schedule 21, page 224, line 27, at end insert—
‘12C (1) Schedule 3 (sexual offences in respect of which offender becomes subject to notification requirements) is amended as follows.-
(2) After paragraph 35 insert—
“35A An offence under section 64 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images) if the offender—
(a) was 18 or over, and
(b) is sentenced in respect of the offence to imprisonment for a term of at least 2 years.”
(3) After paragraph 92 insert—
“92A An offence under section 64 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images) if the offender—
(a) was 18 or over, and
(b) is sentenced in respect of the offence to imprisonment for a term of at least 2 years.”
(4) In paragraphs 93(1) and 93A(1) (service offences) for “35” substitute “35A”.
(5) This paragraph extends to England and Wales and Northern Ireland only.’.
No. 205, in schedule 21, page 225, line 12, at end insert—
‘16A In sections 88(3), 89(9) and 91(5) (days to be disregarded in calculating certain time periods relating to bail and custody under Part 10), before paragraph (a) insert—
“(za) Saturday,”’.—[ Mr. Hanson.]

Vernon Coaker: I beg to move amendment No. 244, in schedule 21, page 225, line 12, at end insert—
‘16B (1) Section 325 (arrangements for assessing etc risks posed by certain offenders) is amended as follows.
(2) In subsection (8), for “section 326” substitute “sections 326 and 327A”.
(3) After that subsection insert—
“(8A) Responsible authorities must have regard to any guidance issued under subsection (8) in discharging those functions.”
16C In section 326(5)(a) (review of arrangements), for “and this section” substitute “, this section and section 327A”.’.

Nicholas Winterton: With this it will be convenient to discuss the following:
Government new clause 38—Disclosure of information about convictions etc of child sex offenders to members of the public—
and the following amendments thereto: (a), in subsection (2), leave out from ‘(3)’ to ‘disclose’ and insert ‘the responsible authority may’.
(c), in subsection (3)(a), leave out from ‘risk’ to end and insert
‘of serious harm to any identified person or persons, particularly a child or children’.
(d), in subsection (3)(a), after ‘causing’, insert ‘serious’.
(e), in subsection (3)(b), after ‘from’, insert ‘serious’.
(f), in subsection (3)(b), at end insert ‘, and
(c) the disclosure of information would be in the best interests of promoting public safety.’.
(b), in subsection (4), leave out ‘presumption under subsection (2)’ and insert ‘consideration under subsection (1)’.
(g), in subsection (4)(b), at end insert—
‘(4A) Nothing in subsection (4) above shall grant members of the public a right to request a disclosure from the responsible authority.’.
Government new clause 39—Sexual offences prevention orders: relevant sexual offence.
Government new schedule 4—‘Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”

Vernon Coaker: We come now to an interesting part of the Bill and our deliberations. We valued very much the huge range of contributions that we had during the review of the protection of children from sex offenders, which, as hon. Members will know, the Government published in June. It was an extremely good process, involving a wide range of stakeholders. Given the huge differences in opinion on the issue, I think that a reasonable compromise has been reached.
The review rejected the idea of a Megan’s law, but concluded that greater use of controlled disclosure was necessary to enhance the protection of children. Under existing guidance, police in England and Wales already disclose information about registered sex offenders in a controlled way. The guidance states that consideration must be given in each case to whether information about an offender should be disclosed to others to protect victims, potential victims, staff and others in the community. That applies to all categories and levels of multi-agency public protection arrangements cases.
The review found that the extent to which information is disclosed varied from area to area. We believe that greater use should be made of controlled disclosure, and that the process needs to be formalised and auditable, with clear guidance to ensure that it is consistent and accountable, as part of the MAPPA process.
New clause 38 builds on the existing duty to co-operate placed on all MAPPA-responsible authorities, which is included in the Criminal Justice Act 2003. It will ensure that MAPPA authorities are under a specific duty to consider the disclosure of a child sex offender’s convictions to members of the public. There will be a presumption that convictions will be disclosed, if a child is at risk of suffering harm through the offender’s committing another child sex offence, and the disclosure is necessary to protect the child. So for example disclosures may be made to employers, girlfriends, friends or family members, or individuals in organisations where children may be assessed, who are able to protect a child who is at risk.
The list of offences, convictions or cautions that could be the subject of disclosure is included in new schedule 4, which will become schedule 34A to the Criminal Justice Act 2003. It includes sexual offences that can be committed only against children, such as sexual activity with a child, and other sexual offences that are not specifically child sex offences, such as sexual assaults, in cases in which the victim was under 18. The duty will be relevant to any offender managed by a MAPPA authority who has been convicted of one of the offences against a child. However, the disclosure may include all previous convictions for a child sex offence, not just those that have led to the offender being managed by a MAPPA authority. It will also include spent convictions, and we are amending the Rehabilitation of Offenders Act 1974.
The duty placed on MAPPA authorities will be to consider disclosure, not necessarily to disclose. That is an important point. Although there will be a presumption that information will be disclosed if a child sex offender managed by MAPPA authorities poses a risk of harm to any child or children generally, there will not be an absolute duty to do so. That will allow the MAPPA authorities discretion to deal with each case.
Amendments (a) and (b) to new clause 38, tabled by the hon. Member for Somerton and Frome, would remove that presumption and place the MAPPA authorities under a duty to consider disclosure, which they are already entitled to do. Although that would ensure that all MAPPA authorities considered disclosure, it would not provide a steer to them on whether they should disclose. Furthermore, a presumption in the cases identified in the new schedule must surely be justified in the interest of public protection.
The Government’s view—I know that it is the view of everyone in the Committee and that the debate is about how we achieve it—is that the public will presume that, in cases where a risk of harm has been identified and disclosure would prevent that risk, an authority with the remit to do so would make that disclosure. That is certainly the Government’s position, as outlined in the review and reflected in the new clause.
The amendments to new clause 38 would also limit the duty to consider disclosure to cases in which the offender poses a risk to an identified child or children and such disclosure is necessary to protect the child or children from harm. Our view is that a MAPPA authority will at least need to consider disclosure in all cases, in order to identify the cases in which it is necessary. I say to the hon. Members for Somerton and Frome and for Cambridge that we shall consider on Report the inclusion of the word “serious”, as suggested in their amendments (c), (d) and (e), although we cannot accept the other changes that they suggest. I hope that the inclusion of that word will make a significant difference. I take the point that we need to consider the best way of making that change, and I do not want to get into whether amendments are flawed, but we accept the principle on the word “serious”.
I spoke about the concerns this morning to Dame Mary Marsh, the chief executive of the National Society for the Prevention of Cruelty to Children, and told her that, in response to the amendments, we will consider what we can do about using the term “serious harm”. It is an important point; it came out in the review, and on Report we shall look to put the word in. Although I am not able to give any comfort to the hon. Gentlemen on their other points, I hope that I have shown that Ministers listen and, when good points are made, try to include them in a Bill so that it is improved.
The other amendments to the new clause, which we cannot accept, would broaden the scope of the presumption to disclose to situations in which adults are at risk. The focus of the provisions is primarily the protection of children, which was identified as necessary in the review of the protection of children from sex offenders. MAPPA authorities are not prohibited from disclosing in other cases, but we want the duty to focus on cases involving children. The word “identified”, which is in amendment (c), would limit the duty to consider disclosure to identifiable individuals. There may be cases in which a risk to a group of children is identified—at a leisure centre, for example—but it is not possibly to identify precisely every individual child who may be at risk. We want to be able to protect all children who attend such a leisure centre and might be at risk, even if we cannot specifically identify a particular individual. That is why we have a problem with that part of amendment (c).
Amendment (f) would add to the requirements necessary for the presumption to disclose to apply, by requiring that disclosure be in the best interests of promoting public safety. Our view is that it is unnecessary. Its apparent purpose is to ensure that a balanced risk assessment is made prior to disclosure. However, to comply with the Human Rights Act 1998, the MAPPA authority will already have to undertake such an assessment and conclude that the disclosure is both proportionate and necessary in the interests of public safety or, just as importantly, for the prevention of crime.
Amendment (g) appears to be intended to dissuade members of the public from making requests for information from their local police forces. Members of the public cannot be prevented from requesting disclosure, but they do not have the automatic right to such information. We do not anticipate that the duty to consider disclosure will automatically lead to a huge rise in the number of public requests. When a request is made, however, any decision to disclose will be subject to the relevant processes and safeguards. To whom the information is disclosed will be determined by the nature of the risk and whether disclosing information to a particular individual or organisation is necessary. MAPPA authorities will be able to impose conditions on the recipient of the information, limiting its further disclosure to other parties.
Whatever decision is taken, to disclose or not, the responsible MAPPA authorities will be required to record the reasons for it. We stated explicitly in the review of the protection of children from sex offenders that the new duty would include the presumption outlined in the Government amendment, to ensure the greater but more consistent use of controlled disclosure. As I have said, the review was conducted in consultation with stakeholders, from whom there was broad support for its outcomes.
The overall effect of the amendments tabled by the hon. Members for Somerton and Frome and for Cambridge would be to lessen the direction given to MAPPA authorities—I know that that is partly the intention—and hinder attempts to ensure greater consistency in the use of controlled disclosure. To ensure that MAPPA authorities are given further direction and to guard against inappropriate disclosure, the responsible authority will be required to follow any guidance issued by the Secretary of State on the duty to consider disclosure. Amendment No. 244 will amend the Criminal Justice Act 2003 to allow such guidance to be issued and to require the MAPPA authorities to have regard to it. They will also have to report on their disclosure functions in their annual reports.
I am taking my time and going through the amendments methodically, because it is important to outline their details. A lot of people will read the debates on the matter, so I apologise; I would normally be a bit more spontaneous—I hope. It is important to reiterate that controlled disclosure already exists. MAPPA authorities can and do disclose information if the circumstances warrant it. Amendment No. 244 will not prohibit the disclosure of other information not covered by the duty to consider disclosure, but it will ensure that disclosure happens more consistently and with greater accountability in the most critical cases involving the protection of children from sexual abuse. I know that we all share that aim.
I turn to new clause 39. The Sexual Offences Act 2003 introduced sexual offences prevention orders. They are used to impose prohibitions on violent offenders or sex offenders who pose a risk of serious sexual harm, for example by preventing an offender from loitering outside playgrounds. A sexual offences prevention order also makes the offender subject to the notification requirements of the Sexual Offences Act. The orders have proved an effective and well used method of managing the risks posed by sex offenders. However, we have identified a potential anomaly that allows offenders convicted of certain violent offences to be made subject to a sexual offences prevention order in a wider range of circumstances than offenders convicted of sexual offences. New clause 39 will widen the circumstances in which those in the latter category can be made subject to an order.
Currently, a sexual offences prevention order can be made against anyone convicted of, or cautioned for, an offence listed in either schedule 3 or schedule 5 to the 2003 Act. Schedule 3 lists sexual offences. Schedule 5 lists violent offences, which although not inherently sexual, could indicate a risk of sexual harm. However, schedule 3 is also used to determine whether an offender is subject to the notification requirements, commonly known as the sex offenders register. Consequently some of the offences listed in the schedule contain thresholds for the sentence length, type and the age of the offender and victim that must be met before an offender becomes eligible for the notification requirements.
These thresholds also apply to eligibility for a sexual offences prevention order, which means that if these criteria are not met, there is no discretion for a court to make an offender subject to an order, even if the offender poses a risk of sexual harm. By contrast, where someone has been convicted of one of the violent offences in schedule 5, no such thresholds exist and the court has discretion to make the individual subject to an order, regardless of any age or sentence criteria. Under new clause 39 thresholds in schedule 3 will be disregarded for the purposes of making an order. That will provide courts with the same discretion to make sexual offences prevention orders for those convicted of sexual offences as they currently have for those convicted of violent offences. That will help the police to restrict the offending behaviour of offenders in certain cases.
I apologise to the Committee for what was a fairly long introduction to this series of amendments, but given their importance, I wanted to read much of that into the record so that people would have clarity about what the Government are proposing. I look forward to the debate, as I know that we all share the aim of protecting our children from sex offenders.

Nicholas Winterton: It would be appropriate to call the hon. Member for Somerton and Frome first, because he has amendments that have been selected.

David Heath: I am most grateful, Sir Nicholas. This is a very important debate within the context of this Bill and we need to take due care here. I very much appreciate the way that the Minister approached the subject and made the point that had to be made: if we disagree about the means it does not mean to say that we disagree about the end, which is the proper protection of children in our society from sexual offenders. He knows, because this has been a matter of enormous controversy over the years, the genuine reservations that not only observers but practitioners in this area have about the widespread disclosure of information on sexual offenders. They are concerned about the consequences for the management of those offenders in society and the ability to keep proper tabs on their activities and the consequences for the children who should be the focus of our attention.
The view from the Home Office over many years was to reject calls for anything that could be described as Megan’s law or Sarah’s law, on the grounds that it would make matters worse. There has been vocal support in some parts of the popular press, and indeed popular support, for such a law, because unless one thinks it through it seems an obvious move to let everyone know where a sexual offender lives and that they are in a particular community, so that everybody can take proper care. We cannot begin to address the issues properly until we think through what the consequences are in terms of the ability to manage someone on the sexual offences register and to ensure that they do not renege on the commitments that they give as part of their management regime and disappear, posing a much greater risk to children in other areas.
As I said, the Home Office rejected those calls for a long time. Then, for reasons that I do not entirely understand, there was a change of view. The view was that they should send a Minister over to America, and perhaps there is merit in Megan’s law after all. The Minister did his study tour of America and looked at the experience there. When he came back, the view was still that we do not want this measure.
The empirical evidence in America is very clear that this measure does not improve the protection of children from sexual offenders. Off the record, some of the best-known practitioners in the police forces of the United States who have worked within this legal construct and outside it say that we do it better. We do it better with MAPPA and the sexual offenders register. Far from making it easier for the police to do their work, this law makes it considerably more difficult. That is quite apart from the corrosive effect that the disclosure can have on the individual. Some people would say that they deserve it, because they have committed some of the most serious crimes that society can imagine, but if it causes further social disengagement, it perhaps encourages exactly the sort of crime that we want to discourage.
I am a little surprised that at the end of that process of careful consideration, the outcome was to bring the measure back to the Committee. I say from the outset that the measure before us is the least bad option: there were options that I would have been more strongly resistant to. This suggests to me that the Home Office feels constrained to do something by a decision taken by a previous proprietor. However, having taken everything into account, it wants to do the minimum that is consistent with the commitments that were made. I may be wrong, and I may be misinterpreting the position, but it feels strongly as if this is the bare minimum that the Home Office feels it can do to be consistent with previous policy, while not changing the arrangements too much. I understand that.
I respect the fact that the Minister is trying do the best job that he can on the policy area with which he is dealing. However, I still do not agree, because I think that the good practice that he described is being done already. Those for whom there is a real risk are notified under the present arrangements. That is done discreetly, quietly and is not splashed all over the tabloids or the local newspapers. It is absolutely right that they are told and that proper precautions are in place.
I sometimes criticise the resourcing that is available to MAPPA, because I am always fearful that we expect an awful lot from people in this very difficult area and do not always provide the resources that they need to do it properly. Nevertheless, my general view is that they fulfil their duties conscientiously, carefully, and with considerable success.

Sally Keeble: I apologise that I was not here for the earlier part of the debate, Sir Nicholas.
Does the hon. Gentleman accept that where agencies engage in such good practice, they are left hung out to dry if something goes wrong? That has been a real issue in my constituency. They have no legal protection at all. If there is any criticism of what happens or there is a climate of fear because of what is going on in the tabloid newspapers, they clamp down and do not persist with good practice and things move backwards.

David Heath: I am grateful to the hon. Lady because I do recognise that issue. One of my concerns about the proposals is that they make that situation worse, by the word “presumption”. If authorities are no longer to have discretion, it will be expected because of the word “presumption” that they will release the information except where they judge that it is not in the child’s interests to do so.
What will happen when it goes wrong? If the authorities take the view that they should not release information to a family or institution and an incident happens, the media will crawl all over them saying, “The presumption was that you should have released the information, and you didn’t. How could you possibly have come to the conclusion that X, a known sex offender, should be on the loose in our community and not tell the local primary school or swimming pool, or the woman who lives two doors away?” With a presumption in favour of providing such information, it will be almost impossible for the responsible authorities to answer that question.

Vernon Coaker: I understand the hon. Gentleman’s point, but is it not true that that type of situation arises under existing arrangements as well?

David Heath: Yes—I think that the hon. Member for Northampton, North made that point—but the measures will make it worse. They will change it from an entirely rational view taken by the authorities, on the basis of all the information at their disposal about whether to notify, to a presumption in favour of notifying and releasing information. That will raise expectations that cannot possibly be satisfied if the authorities are to do their job. It also raises the issue of liability. Where there is a legal presumption in favour of releasing information, the information is not given and an incident occurs, will there be a liability on the public authority for not having done what was presumed in the Bill?
While I am dealing with such issues, there is a further complication. If an individual is notified, they are required to keep it confidential. How on earth can Mrs. X be notified confidentially that her children are at risk from an offender? If she sees that the children of Mrs. Y, her good friend and near neighbour, are being befriended by that individual, do we really expect Mrs. X not to tell Mrs. Y the information that she has been given—that that person is a registered sex offender? Will that offender constitute a risk to Mrs. X’s children but not to the other children? It is not realistic to expect that that confidentiality can be respected, and I venture a guess that in certain circumstances it will not be. What will be the consequence?
To return to my amendments, the Minister, absolutely rightly, saw through some of them, quickly identifying that their purpose was to remove the presumption. That is exactly what they seek to do—to change the terms of his amendment to respect the current practice of MAPPA authorities. However, amendments (a) and (b) would move a little in his direction if they were passed. They would require every MAPPA authority, when making such assessments, to consider whether to release the information. They would leave intact the discretion but maintain the principle, which I think he was espousing, that consideration should be made in every case.

Vernon Coaker: What I struggled with was the difference between what the amendments propose and the situation now.

David Heath: The Minister can struggle on, because I am trying to preserve best practice, which I believe we have, rather than introducing a distortion of that practice, which I believe is what the Minister intends. I hope that we can have a friendly discussion about it, however, because that presumption worries me.
I accept the Minister’s argument in the case of
“serious harm to any identified person or persons”.
I can conceive of circumstances in which children cannot be identified individually but in which they could be identified by being found in a particular situation. I shall not pursue that argument, although it still exists.
As for amendments (d) and (e), which would insert the word “serious”, I am grateful to the Minister for saying that he will consider the matter on Report. However, unless he is going to spell the word differently, why not accept the amendments now rather than taking time on Report, when time is always limited, so that the amendments can be in his name rather than mine? However, we get used to these strange things in Committee; we have to accept that the machismo of Government requires that they write in the word “serious” rather than me.

Vernon Coaker: I will ensure that the hon. Gentleman receives the credit, even if I move the amendment.

Nicholas Winterton: The Committee is grateful.

David Heath: Aren’t we all grateful, Sir Nicholas?
Amendment (f) would insert the words:
“the disclosure of information would be in the best interests of promoting public safety”.
I think I heard the Minister say that such a provision is implicit in the Bill, in which case the amendment is less necessary.
I hope that the Minister will consider amendment (g) a little more, and the implication that the clause gives people a right to demand the information. He may underestimate the response of the general public, especially when they are reminded or encouraged—or whatever the appropriate verb is—by the tabloid press to take a positive interest; he may find it much more difficult to resist a request for information than he supposes.
I went through this some years ago, when Mr. Sidney Cooke—some Members will remember him—was on my patch, and it was not a happy experience. It took a lot of clear thinking and much determination, by the authorities and by elected Members, to resist the view that we should throw him to the wolves and advise everyone in which of our police stations he was resident. It was a difficult situation. I ask the Committee not to underestimate the fact that it can cause enormous upset in communities. Strong representations—I put it politely—will be made if people suspect that there is a sexual offender in the area.
I have spoken extensively on this group of amendments, because it is an important issue. Other innovative practices are in place at the moment, quite apart from the MAPPA proposals. Some members of the Committee may be aware of the Circle of Friends initiative; it is enormously valuable. I have spoken to people who give up their time to befriend others and to provide that sort of service. Some are Quakers, members of the Society of Friends, which is active in my constituency, but it is not exclusively a matter for them. I cannot sufficiently express my admiration for those who are prepared to undertake such difficult work in order to reduce reoffending by individuals for whom they have little personal sympathy. They try hard to act as mentors, as befrienders—as people to whom others can turn whenever they are tempted to reoffend. I do not want that to be disrupted and fear that the proposals, well intentioned as they might be, will undermine not only our formal protection procedures, but initiatives such as those I have described. For those reasons, I think that my amendments would improve the clause in the main. I am still not persuaded that the clause will advance the present situation—it may be a serious regression.

Edward Garnier: Having heard the remarks of the hon. Member for Somerton and Frome, I think that I will be considerably shorter than I had originally intended. It is important that we think carefully about this issue, as I am sure the Government have done over the past eight years or so.
We all remember in September 2000, the then Home Secretary announcing what was called
“a package of measures intended to strengthen the protection of children and provide better information to the public on the management of sexual and violent offenders in the community.” 
In the course of that press release, he was quoted as saying:
“These proposals have come about after close consultation with the police and probation services.”
Again, we have had further mention of close consultation from the Minister. The Home Secretary continued:
“As part of this, I have considered very closely the question whether there could be some form of controlled access to the Sex Offenders’ Register. But in practice controlling such access would be impossible to enforce. The arguments against a general right of access are well rehearsed. Such an arrangement would not in our judgement assist the protection of children or public safety.
Controlled disclosure is I believe the better and safer route. Therefore I have concluded that the professional agencies—the police and probation services—are best placed to determine the disclosure of information on individual sex offenders.
But I do believe that the public should have a right to know what measures the police and probation services have in place to protect the public. The guidance which I will issue will also include the question of disclosure of information to groups or individuals and will help to develop a consistent approach. The introduction of the Criminal Records Bureau will enable better information to be provided.”
I will not go into a long rant on the Government’s failure to follow the Bichard inquiry’s recommendations on the need to set up a more effective national police computer system. I will pray in aid MAPPA, as the hon. Gentleman has done. Although those arrangements have had a few hiccups, by and large they have worked pretty well—the failure rate is under 3 per cent. There will always be cases where the probation services or the police do not manage to keep an eye on a particularly ill-motivated person and a terrible crime is committed.
I know that the Government are in trouble over pretty well anything to do with IT. Problems over CNOMIS, which have been mentioned in the Committee before, and problems over VISOR, which is the violent and sex offender register IT system, are also becoming increasingly apparent. Huge sums of money are spent to make those systems work. Sometimes they do and sometimes they do not. Essentially, machinery is in place to ensure that children are protected from attacks or interference by sex offenders, as best as can be humanly arranged.
Since the Home Secretary made that announcement in 2000, various tabloid newspapers have become interested in such cases, no doubt for genuine reasons, but also for reasons of circulation and competition. They make good reading and sell newspapers. When a tabloid newspaper gets hold of an idea, Governments become frightened and lose their judgment. They do things that they might not do under cooler circumstances. I suspect that in this case, the Government feel that they have been forced into at least doing something, rather than doing everything that the various tabloid newspapers, which have run with these campaigns, want them to do. We all understand the difficulties of being in government, just as we understand that politics is not always a rational exercise of mental thought.
I want to look at new clause 38. In case one starts feeling sorry for the Minister having to read rather than be spontaneous—I think perhaps that he meant extemporary rather than spontaneous—I hope that he was not being spontaneous, because then we are in even more trouble than I thought that we were. It is difficult to think that the Government are anything other than spontaneous, if one considers that since the Bill was first published, they have come forward with 85 Government new clauses. That has nothing to do with an interfering Opposition thinking up tedious points and moving commas around, these are 85 Government new clauses, and that is without adding up the number of amendments and new schedules. No doubt they are designed to improve the Bill. However, whether the Minister was being spontaneous, speaking extemporarily or reading verbatim things he had thought about earlier in his office, I am not sure that new clause 38 is the best way to improve the protection of children from child sex offenders.
What factors will weigh in the minds of those who have to do the considering, as referred to in subsection (1) of proposed new section 327A to the Criminal Justice Act 2003? What will be considered when deciding whether to disclose some information about the relevant previous convictions of a child sex offender to a member of the public? Are the considerations that would apply to member of the public A, different from those applying to member of public B? Would different considerations apply in relation to an institution such as a children’s home, or a facility open to the public, as exemplified by the hon. Gentleman—well, perhaps not exemplified—

Vernon Coaker: The hon. Gentleman should get his words right after he took the Mick out of me—

Edward Garnier: I always obey the deputy headmaster, but I was about to suggest that the hon. Member for Somerton and Frome exemplified a swimming pool. That is not what I meant, and certainly not what I intended. I think that the deputy headmaster, the Under-Secretary, knows precisely what I mean, and so does everybody else. I will move on.

Maria Eagle: Let us not start speculating.

Edward Garnier: Before I become confused, I will move on rapidly. There are equal concerns with regard to subsection (3)(b) of proposed new section 327A to the Criminal Justice Act 2003. That states:
“The case is where the responsible authority for the area has reasonable cause to believe that...
(b) the disclosure of information about the relevant previous convictions of the offender to the particular member of the public is necessary for the purpose of protecting children generally or any child from harm caused by the offender.”
—or “serious harm”, as we now think it will be.
There is the same relationship with regard to subsections (4) and (5). What do the Government expect the person to whom the information is disclosed to do with it? What do they expect the mother or grandmother of a child, or the carer of a group of children, to do when given information that in the next door flat or near to where they are, lives somebody with previous convictions for child sex offences? Are they expected to keep that information to themselves and say, “I’m glad I’ve been told that.” Are they expected to do something positive with the information such as move house, change schools, or not go to a particular swimming pool? Should they inform others? Clearly, they are not intended to inform others as that would be a breach of the disclosure arrangements. There needs to be some clearer thinking about what is proposed to be done by the person who receives the information. There will be breaches and people will probably contact the tabloid newspapers and say, “Guess what? I have been told that such and such a person lives four doors down the road,” or someone will have a conversation with a neighbour and so the rumour mill will grow.
No doubt the inaccuracy of the information will become greater as the story gets further and further from the original source and we will come to the extraordinary and utterly unpleasant situation that occurred in a housing estate in Portsmouth not so long ago, when a paediatrician’s property was attacked because the attackers did not know the difference between a doctor who looks after children and a child sex pervert who does anything but look after children. Although those are rather fanciful extensions of the position against which the Government seek to protect us all, it is amazing how often the most exaggerated examples prove eventually to come to fruition.

David Heath: It is not clear what the sanction is for anyone who is given a disclosure subject to a condition that prevents them from disclosing the information to any other person. If it is a criminal sanction, can the hon. and learned Gentleman imagine any jury finding a person who has passed on information about a convicted sex offender to another parent guilty of any conceivable offence?

Edward Garnier: I may have been careless but I am not sure I can see what the sanction is in the new clause, which would bite in the event of impermissible disclosure of information. There are references to the impermissible disclosure of information in other parts of the Bill, so perhaps we are supposed to guess how it fits. It might be a matter of summary events or lead simply to civil liability. It is bolting the stable door after the horse has left the premises to rush round getting an injunction, because that will have gone. It may be that one can do all sorts of things but we should be told what the Government have in mind and remind ourselves what the Secretary of State for Justice and Lord Chancellor said in 2000 about the confidentiality of the information, which will be extremely difficult to enforce.
The late Lord Donaldson, Master of the Rolls, when dealing with a case on the disclosure of confidential information said that publishing confidential information was rather like putting a block of ice in the sun, because once it is in the sun it melts and its value as confidential information goes. I do not know whether his tongue was in his cheek or whether he did not know how funny he was being.
We need to be careful about the consequences of the new clause. I think it is tabloid-driven and politically driven; I regret that the protection measures that have been in place since MAPPA and the creation of the sex offenders register although not perfect need to be further extended by this proposal and I urge the Committee to be extremely sceptical, to the point of rejecting new clause 38.
The hon. Gentleman quite properly said that the new clause could well raise expectations. We do not need to go into the detail of the arguments but it presents legal liability problems. I believe that the mother of one of the victims of the Yorkshire Ripper brought a case against West Yorkshire police for failing to protect her daughter from the activities of the Yorkshire Ripper—I think that the case was called Taylor, but the hon. Gentleman will tell me.

David Howarth: The hon. Gentleman should bear it in mind that that case was lost by the plaintive, and that it is difficult to obtain civil liability against the authorities in such circumstances, but the point that he is making about the lack of clarity on the sanction in the new clause is important. The normal presumption would be that where no criminal penalty is put forward, and where the obligation is not on the state but on a private individual, civil liability is intended by Parliament. I think that it is incumbent on Ministers to say what they mean.

Edward Garnier: I am partly grateful, and partly peeved by the hon. Gentleman. I am peeved because I was about to explain that Mrs. Taylor—if that is what her name was—was not able to establish liability against West Yorkshire police for failing to protect her daughter from the future attack by the Yorkshire Ripper. However, the second point that he made is a good one and I entirely agree with it.

Vernon Coaker: I am sorry that the hon. Gentleman seems to imply that he may vote against new clause 38, but if he refers to subsection (5) of the proposed new clause 327A to the Criminal Justice Act 2003, he will see that it states:
“Where the responsible authority makes a disclosure under this section...it may impose conditions for preventing the member of the public concerned from disclosing the information to any other person.”
My understanding of that situation is that if the authority imposed such conditions and then the person did disclose the information, there would be the sanctions of liability that the hon. Gentleman has already mentioned, but also, if in disclosing that information there was then an assault or any other type of criminal activity, that would of course be subject to the criminal law.

Edward Garnier: That is all after the event. Once the information is out, its value as confidential information has gone. I can understand that the mother of a child might want to be told if a sex offender lived next door to her, but we do not know what the conditions are and we do not know what the sanctions will be for breaking the conditions. If they are going to be criminal sanctions, they ought to be on the face of the Bill. If we are extending the criminal law, we should know how we are doing it.
In relation to civil liability, how far down the chain of causality does one go? If I tell my neighbour, my neighbour tells someone else and we move 20 or 30 people down the road, and that twentieth person then grievously assaults or kills the sex offender, how far back does the Government think that they are going to go in pinning liability on the disclosure of the confidential information? Often, these people are not going to have any money to pay damages; often what is needed is anticipatory relief, not ex post facto relief. I am grateful to the hon. Member for Cambridge, who has now reminded me that the mother of the victim of the Yorkshire ripper was called Mrs. Hill. As I was about to say and he did say, she was unable to pin civil liability on West Yorkshire police.
I have said quite enough. I said that my remarks were going to be short but they have been rather longer than even I had intended.

Vernon Coaker: I shall not be spontaneous but extemporary. In many of the debates, including that on the provisions on homophobia and incitement to hatred of gay people, the standard has been very good, particularly the contribution of my hon. Friend the Under-Secretary. Opposition Members have raised some interesting points, but the legislation before us is not tabloid-driven. There is a real debate in all our communities and in all sections of the country about the best way to protect our children from paedophiles. I accept that we all wish to do that, and I do not suggest that anybody in the Committee—from whatever party—intends to make the country less safe for children. To suggest otherwise would be ludicrous and insulting. However, there is a real debate, which is driven not just by tabloid newspapers, but by ordinary people, unless hon. Members’ constituencies are different from mine.
Ordinary people are talking. I do not mean that in a disparaging sense. People who live in our communities, take their children to school and worry about these matters ask what the Government are doing to protect them from people whom they see as a threat to their children. The answer could be that the Government are doing everything possible, nothing further needs to be done and we just shrug our shoulders or it could be that the existing system is fine and there is no need to change the law. Frankly, we did not feel that either response was appropriate, but we knew that there were huge variations of opinion.
Some people say that we should keep everything among professionals, others that everybody should have the right to know everything. The Government thought, “How do we respond to that? What is the best way forward?”. So we went out to consultation, and the then Minister, now the Under-Secretary of State for Culture, Media and Sport, went to the United States to examine practice there. We consulted a huge range of stakeholders, as every hon. Member knows. They will have seen the review of protection in respect of child sex offenders, and I do not want to read out every stakeholder, but people from the Association of Chief Police Officers, through the probation service, to children’s charities all made a contribution to the very real debate about what we do to protect our children. We felt, and I feel, that the reasonable approach that the review tries to take is the way in which politics ought to be conducted. It presents a real change while offering some reassurance to people who have concerns about how their children will be protected.
I was grateful to the hon. Member for Somerton and Frome for his appreciation of my point about the reasonableness with which we have tried to advance the issue. I hope that the Committee consider the measure a reasonable response to a very difficult problem. The Government think it necessary to move forward, but we want to do so proportionately, without allowing, as the hon. and learned Member for Harborough said, those appalling scenes in which people mistake paediatricians or others for paedophiles. That, however, does not alter the fact that a very real issue exists.
We have not taken the move lightly, and I take absolutely the point from the hon. Member for Somerton and Frome that we must be careful and proportionate about the way in which we move forward. If we go too far, there is a real risk that, instead of protecting children and alerting people to the dangerous paedophile who may be in their community, we just lose track of the paedophile and control of the situation, because they go underground. Equally, we have tried to address the support and help that we could give parents or head teachers and how to provide them with information to assist them in protecting children who are their responsibility.

Charles Walker: Although I believe in rehabilitation, there is a question that we need to address about whether dangerous paedophiles should be returned to the community.

Vernon Coaker: Risk to the community is a very real issue. At present, however, we are discussing the MAPPA arrangements, which have been very successful in dealing with child sex offenders and other violent offenders. We are considering what extension to the powers of disclosure would be helpful.
This is not Megan’s law. It is controlled disclosure, not automatic disclosure. The hon. Member for Somerton and Frome mentioned presumption, but there is a presumption in the existing guidance available to MAPPA. The decision on whether to disclose to third parties must be considered in all MAPPA-managed cases, and all level 2 and 3 MAPPA meetings must consider disclosure, with the presumption that it will occur.
The Government are putting a duty on the relevant authorities to try to overcome some of the variations between different MAPPA authorities in different parts of the country. It is surely right to have that consistency, so that the performance of the best MAPPA authorities is replicated across the country, and our children get the level of protection that we all want.
The hon. Member for Somerton and Frome mentioned America. He knows that there is automatic disclosure there, and that is not what is being proposed. I mentioned earlier to the hon. and learned Member for Harborough the conditions that we can impose in response to subsection (5)(b). We believe that sanctions are available through both the civil and criminal routes if people break those conditions. When people ask how that will stop someone disclosing when they should not, they underestimate the deterrent effect that the law can have. If we say to people, “These are the conditions under which you are to be given the information, and if you break them you may well be subject either to a civil sanction or to the criminal law”, that would for many people operate as a deterrent.

Charles Walker: On a slightly technical point, if someone who owned a home was told that their new near neighbour was a paedophile who posed a danger to children, and, having learned that information, decided to sell their home and move on, would they be obliged to tell the purchasers or would the authorities do so?

Vernon Coaker: Not necessarily, because it would depend on the purchasers’ circumstances. If the purchasers had young children, it would be for the MAPPA authorities to consider whether they should be told.
We have had a good debate. I have tried to assure the hon. Member for Somerton and Frome in particular on the inclusion of the word “serious”, to which we shall return on Report. Without making any commitment, I shall consider his concern in relation to people demanding disclosure from the MAPPA authorities, and ensure that that concern is covered. At present, however, my understanding is that we can control the position by means of guidance.

Amendment agreed to.

Amendments made: No. 180, in schedule 21, page 225, line 15, at end insert—

‘Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (S.I. 2005/950)
17A In paragraph 14 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (saving from certain provisions of the Criminal Justice Act 2003 for sentences of imprisonment of less than 12 months), for “sections 244 to 268” substitute “sections 244 to 264 and 266 to 268”.’.
No. 245, in schedule 21, page 225, line 15, at end insert—

‘Terrorism Act 2006 (c. 11)
17A (1) Schedule 1 to the Terrorism Act 2006 (Convention offences) is amended as follows.
(2) In the cross-heading before paragraph 6 (offences involving nuclear material), after “material” add “or nuclear facilities”.
(3) In paragraph 6(1), after “section 1(1)” insert “(a) to (d)”.
(4) For paragraph 6(2) and (3) substitute—
“(2) An offence mentioned in section 1(1)(a) or (b) of that Act where the act making the person guilty of the offence (whether done in the United Kingdom or elsewhere)—
(a) is directed at a nuclear facility or interferes with the operation of such a facility, and
(b) causes death, injury or damage resulting from the emission of ionising radiation or the release of radioactive material.
(3) An offence under any of the following provisions of that Act—
(a) section 1B (offences relating to damage to environment);
(b) section 1C (offences of importing or exporting etc. nuclear material: extended jurisdiction);
(c) section 2 (offences involving preparatory acts and threats).
(4) Expressions used in this paragraph and that Act have the same meanings in this paragraph as in that Act.”
(5) After paragraph 6 insert—
“6A (1) Any of the following offences under the Customs and Excise Management Act 1979—
(a) an offence under section 50(2) or (3) (improper importation of goods) in connection with a prohibition or restriction relating to the importation of nuclear material;
(b) an offence under section 68(2) (exportation of prohibited or restricted goods) in connection with a prohibition or restriction relating to the exportation or shipment as stores of nuclear material;
(c) an offence under section 170(1) or (2) (fraudulent evasion of duty etc.) in connection with a prohibition or restriction relating to the importation, exportation or shipment as stores of nuclear material.
(2) In this paragraph “nuclear material” has the same meaning as in the Nuclear Material (Offences) Act 1983 (see section 6 of that Act).”’.
No. 246, in schedule 21, page 225, line 28, at end insert—

‘Armed Forces Act 2006 (c. 52)
19A In paragraph 12(ah) of Schedule 2 to the Armed Forces Act 2006 (offences)—
(a) for “and 18 to 23” substitute “, 18 to 23 and 29B to 29G”; and
(b) for “racial or religious hatred” substitute “hatred by reference to race etc”.’.—[Mr. Coaker.]

Schedule 21, as amended, agreed to.

Schedule 22

Transitory, transitional and saving provisions

Amendments made: No. 57, in schedule 22, page 227, line 22, at end insert—
‘5A In subsection (5) of section 148 of the Criminal Justice Act 2003 (c. 44) (restrictions on imposing community sentences), as inserted by section 11 of this Act, the reference to a youth rehabilitation order is to be read as including a reference to any youth community order within the meaning of section 147(2) of the Criminal Justice Act 2003 (c. 44) (as it has effect immediately before the commencement of paragraph 72 of Schedule 4 to this Act).’.
No. 206, in schedule 22, page 228, line 19, at end insert—
‘10A (1) Subject to the following provisions of this paragraph, the Rehabilitation of Offenders Act 1974 (c. 53) (as amended by Schedule 12 to this Act) applies to cautions given before the commencement date as it applies to cautions given on or after that date.
(2) A caution given before the commencement date shall be regarded as a spent caution at a time determined in accordance with sub-paragraphs (3) to (8).
(3) A caution other than a conditional caution (as defined in section 8A(2)(a) of the 1974 Act) shall be regarded as a spent caution on the commencement date.
(4) If the period of three months from the date on which a conditional caution was given ends on or before the commencement date, the caution shall be regarded as a spent caution on the commencement date unless sub-paragraph (7) applies.
(5) If the period of three months from the date on which a conditional caution was given ends after the commencement date, the caution shall be regarded as a spent caution at the end of that period of three months unless sub-paragraph (7) applies.
(6) Sub-paragraph (7) applies if—
(a) before the date on which the caution would be regarded as a spent caution in accordance with sub-paragraph (4) or (5) (“the relevant date”), the person concerned is convicted of the offence in respect of which the caution was given, and
(b) the rehabilitation period for the offence ends after the relevant date.
(7) The caution shall be regarded as a spent caution at the end of the rehabilitation period for the offence.
(8) If, on or after the date on which the caution becomes regarded as a spent caution in accordance with sub-paragraph (4) or (5), the person concerned is convicted of the offence in respect of which the caution was given—
(a) the caution shall be treated for the purposes of Schedule 2 to the 1974 Act as not having become spent in relation to any period before the end of the rehabilitation period for the offence, and
(b) the caution shall be regarded as a spent caution at the end of that rehabilitation period.
(9) In this paragraph, “the commencement date” means the date on which section 54 comes into force.’.
No. 373, in schedule 22, page 228, leave out lines 25 to 29.
No. 285, in schedule 22, page 230, line 33, at end insert—
‘(3) Section (Requests to other member States: Northern Ireland) does not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.
(4) Section (Requests from other member States: Northern Ireland) does not apply in relation to financial penalties (within the meaning of that section) imposed before that section comes into force.’.
No. 247, in schedule 22, page 231, line 24, at end insert—

‘Part 7A

Police

Police misconduct and performance procedures
24A (1) This paragraph applies if paragraphs 7, 8(3), 15 and 16 of Schedule 19 come into force before the relevant provisions of the Legal Services Act 2007 come into force.
(2) Until the relevant provisions of the Legal Services Act 2007 come into force—
(a) section 84 of the Police Act 1996 (c. 16) (as substituted by paragraph 7 of that Schedule and as referred to in the subsection (4) of section 85 of that Act substituted by paragraph 8(3) of that Schedule) has effect as if, in subsection (4), for the definition of “relevant lawyer” there were substituted—
““relevant lawyer” means counsel or a solicitor;”; and
(b) section 4 of the Ministry of Defence Police Act 1987 (c. 4) (as substituted by paragraph 15 of that Schedule and as referred to in subsection (6) of the section 4A of that Act substituted by paragraph 16 of that Schedule) has effect as if, in subsection (4), for the definition of “relevant lawyer” there were substituted—
““relevant lawyer” means counsel or a solicitor;”.
(3) In this paragraph “the relevant provisions of the Legal Services Act 2007” means the provisions of that Act which provide, for the purposes of that Act, for a person to be an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act).’.—[Maria Eagle.]

David Hanson: I beg to move amendment No. 248, in schedule 22, page 231, line 32, at end insert—

‘Part 9

Miscellaneous

Persistent sales of tobacco to persons under 18
26 The new sections 12A and 12B inserted into the Children and Young Persons Act 1933 (c. 12) by section (Persistent sales of tobacco to persons under 18) do not apply where any of the offences mentioned in those new sections were committed before the commencement of that section.’.

Nicholas Winterton: With this it will be convenient to discuss the following: Government new clause 41—Persistent sales of tobacco to persons under 18.
New clause 50—Notification of tobacco offence
‘(1) The Children and Young Persons Act 1933 (c. 12) is amended as follows.
(2) In section 7 (sale of tobacco, etc, to persons under 16) after subsection (1A) insert—
“(1B) If an offence under subsection (1) has been committed on any premises, the person having management functions in respect of those premises must be notified within 14 days.”’.
New clause 51—Purchase of tobacco by or on behalf of children
‘(1) The Children and Young Persons Act 1933 (c. 12) is amended as follows.
(2) After section 12D (inserted by section [Persistent sales of tobacco to persons under 18] of this Act) insert—
“12E Purchase of tobacco by or on behalf of children
(1) An individual aged under 18 commits an offence if he buys or attempts to buy tobacco or cigarette papers.
(2) But subsection (1) does not apply where the individual buys or attempts to buy the tobacco or cigarette papers at the request of—
(a) a constable, or
(b) a weights and measures inspector who is acting in the course of his duty.
(3) A person commits an offence if he buys or attempts to buy tobacco on behalf of an individual aged under 18.
(4) Where a person is charged with an offence under subsection (3) it is a defence that he had not reason to suspect that the individual was aged under 18.
(5) A person guilty of an offence under this section is liable on summary conviction—
(a) in the case of an offence under subsection (1), to a fine not exceeding level 3 of the standard scale, and
(b) in the case of an offence under subsection (3), to a fine not exceeding level 5 on the standard scale.”’.

David Hanson: The amendments address how we look at the control of tobacco sales to persons under the age of 18. The Government strongly favour the view that more needs to be done to tackle under-age smoking. All members of the Committee recognise that access to cigarettes remains far too easy for many. In a recent survey, fewer than a quarter of 11 to 15-year-olds who tried to buy cigarettes from small shops found it difficult to do so. We need to encourage retailers to comply with the recent changes in the law to raise the level of the age of purchase of cigarettes to 18, and to prevent the sale to children and young teenagers of a product that it is generally recognised can cause addiction, long-term health problems and premature death.
Ministers at the Department of Health introduced in 2004 the “Choosing Health” White Paper, in which the Government signalled their intention to introduce preventive measures such as those before us that will effectively deal with those who repeatedly sell cigarettes and tobacco products to under-age children through a negative licensing scheme. The implementation of the scheme, which was discussed in the 2004 paper, was subject to public consultation last year by the Department of Health and my predecessors. The vast majority of respondents felt that the approach was preferable to the alternative, which would have been a positive licensing scheme.
Government new clause 41 puts into effect the proposals for a negative licensing system by enabling magistrates to impose orders on retailers prohibiting the sale of tobacco for up to one year for persistent flouting of the law restricting the sale of tobacco to people under the minimum age of 18.

Philip Hollobone: I would be genuinely interested to know how the proposal compares with similar proposals with regard to persistent sales of alcohol to those under 18.

David Hanson: There is a difference of approach in relation to alcohol sales. One of the later amendments tabled, I think, by the hon. Member for Enfield, Southgate relates to that. I would like to listen to his arguments and potentially respond to the queries made by the hon. Member for Kettering at that point. Initially, I want to speak to the Government new clauses and pause to let the hon. Gentleman and others comment on the Opposition clauses. I will try to respond to those matters in due course.
The Government new clauses introduce two new types of order. First, a restricted premises order, which prohibits the sale of tobacco on the premises at which there has been persistent flouting of the law on under-age sales of tobacco. The second is a restricted sales order, which will prohibit any person to whom it relates from selling tobacco or cigarettes from a shop or vending machines, or from managing the shop where the offences occurred or other shops where tobacco is sold. Both orders are needed to ensure that the retailer cannot simply avoid the restrictive premises order by, for example, transferring management to another person.
It is my strong view that the measures adequately reflect the seriousness of selling tobacco to children and to young teenagers. Given the change in the law this year, which raised the age to 18, it is important that we look at those retailers that persistently flout the law. Most retailers are responsible, sensible and attempt to abide by the law, but if we examine the performance of retailers across England and Wales, there will, sadly, occasionally be some who persistently flout the law. The sanction is reserved solely for the most serious cases. When there has been a persistent flouting of the law, local authorities will be able to apply to the courts for an order following conviction for breaking the minimum age law on at least two occasions previously within a two-year period. That is both fair and reasonable.
In the legislation, I am attempting to ensure that we do not come down on retailers at the first opportunity. That can happen and the retailer can be taken to court. If someone commits more than two offences within a two-year period, there is a serial nature to those offences, and the opportunity is there for the local authority to apply for an order. The order can be one of the two types before the Committee today. Managers of retail premises selling tobacco products have a responsibility to train their staff in compliance, to keep within the law and to ensure that, as far as possible, the minimum age requirements are met by those who work in the various outlets.
If there is doubt about the customer’s age, staff should ask—as I hope that they will do—to seek proof of age, such as driving licences, passports or other cards with tamper-proof holograms. There is an opportunity for us to look at changing the culture, setting a standard and giving local authorities the ability to tackle persistent offenders in a very strong way.
Government amendment No. 248 ensures that only offences committed after the commencement of new clause 41 would be relevant when the court considers whether to make a restricted premises or sales order. Whatever the outcome of our discussions on the Opposition amendments, I hope that those two clauses can be accepted in Committee. I await the discussions on the amendments and will respond accordingly.

David Burrowes: I am glad to respond to new clause 41 and to speak to the amendments in our names. The context of the provisions is the extension of the minimum age of 18 to the availability of tobacco. That is an important point from which to start. My comments, and the new clause, are supported by the British Retail Consortium, which is the lead trade association and represents a whole range of retailers, from large multiples and department stores through to independents, selling a wide range of products in towns, rural areas and virtual stores and by the Association of Convenience Stores, which is the voice of 30,000 local shops in the UK and has members in town centres, neighbourhoods and rural areas across the country. The representatives of the BRC and the ACS cover a wide range of retailers, which support the Government’s new clause 41, but feel that the issue needs to be addressed proportionately. They express both concern and support for the Government’s target to reduce the availability of tobacco for young people, but want a consistent approach.
My hon. Friend the Member for Kettering mentioned alcohol, and there needs to be a consistent approach to the way that we deal with alcohol and tobacco sales and enforcement. It is also important—and I welcome the Minister’s comments in relation to responsible retailers—to ensure that we are supporting responsible retailers, because they are at the front line, ensuring that any strategies concerning the availability of tobacco and alcohol for young people are properly enforced. We need to support those retailers.
We must also recognise the context in which this law would be applied. More often than not, that context would be the small local shop with a rapid turnover of staff, including temporary staff, who have to deal at the counter with people asking for alcohol or tobacco. There is also a fair turnover among the management of such shops.
Regarding tobacco, the other context is that industry figures show that, on average, tobacco accounts for up to 22.3 per cent. of turnover in such shops. The sale of tobacco is a key part of their business, particularly for those shops that, in many areas, are struggling for survival. It is important that we support those small shops in particular and show those shops that have responsible management that we are on their side.
New clause 41 warrants support, in that it presents tough but flexible penalties. In trying to have a proportionate response, the amendments put forward in my name and those of my hon. Friends—amendments (a) to (d)—seek to alter the time period during which the three offences can take place, from two years to three months, and also to reduce the maximum period of a ban on tobacco sales from one year to three months. Taken together with amendment (e), there would be a requirement for trading standards officers, if they have evidence that an under-age sale offence took place, to notify the premises involved.
The remaining amendments and new clause 51 try to achieve equality between the way that we apply tobacco laws and the way that we apply alcohol laws. We seek to make it illegal for someone under 18 to buy tobacco products and to make it illegal for someone over 18 to buy tobacco on behalf of someone under 18.

Philip Hollobone: As I understand it, the Licensing Act 2003 made it a criminal offence for a young person to attempt to buy alcohol or for an adult to supply them by proxy. Is this Bill not a superb opportunity to have the same rules and regulations with regard to tobacco products? I simply do not understand why the Government are not making that simple link.

David Burrowes: I am grateful to my hon. Friend for his intervention and it encourages me to take new clause 51 first. I support his point; from the point of view of both consistency and equality, there is a need to deal with the issue of tobacco in the same manner as we deal with alcohol. New clause 51 seeks to do that, to achieve equality between the law on selling tobacco and the law on selling alcohol. Presently, anyone under 18 who attempts to buy alcohol is committing an offence, but anyone under 18 who attempts to buy tobacco is not.
That puts the legal onus entirely on the retailer and our concern is that we should ensure that the young person themselves is also made accountable and we would achieve that by new clause 51. We would like to see the law changed so that the young person is made properly accountable for their actions, and that change would put the law on the side of the responsible retailer who wants to ensure that that young person knows that, if they attempt to buy tobacco, the law will come down on them and not be on their side. In new clause 51, we would prefer that they were dealt with by way of a fine, which would be a proportionate response and act as a deterrent in the first place, to try to stop them buying tobacco themselves or having an adult buy it on their behalf.
The remaining amendments in our names seek to deal with the issue of proportionality in different ways. First, amendments (a) to (d) concern the length of reference period. We suggest that the reference period should be reduced from two years to three months. As discussed before, that would create parity with the sanction on the sale of alcohol in the Violent Crime Reduction Act 2006. It is important to recognise that staff and managerial turnover levels are high in the retail sector and the most effective way to put the sanctions in place through the Government’s approach would be for a short time frame. Three months would enable staff and management to deal properly with the matter. If there were three test purchases in a three-month period, that would certainly be a serious and persistent offence, which the Government would seek to address. It would need to be dealt with properly and firmly.
Given the high turnover, staff and management in business might have to deal with offences that took place two years ago, which is not right or fair. That is why we have tabled amendments (a) to (d), which would deal proportionately and effectively with the intention behind the Government’s new clause 40.
Amendment (a) would reduce the one year ban, which is too long a sanction. Proportionality is necessary, given that convenience stores and newsagents have a high turnover. It is also important to recognise that if we ban the selling of tobacco in those businesses, particularly the small ones, a key part of their trade would be wiped out, which could increase the threat of bankruptcy. We should instead be tackling persistent offenders over a short time frame. That is the essence of our amendments.
Amendment (e) deals with notification periods for the premises involved. The British Retail Consortium and the ACS are concerned because they think that it is important to give proper notice. When enforcement is needed and a prosecution is to take place, a 14-day period, in which the retailer can put matters right, would be more appropriate than to delay notification of enforcement. That would demonstrate that we are on the side of responsible retailers as well as those that want to put their house in order.

David Hanson: The Opposition’s amendments make some useful points that are worth discussing in a helpful context. I cannot accept all the amendments, but some raise points worthy of further examination.
I shall start with the negatives, so that I can end on a positive note. Amendments (b) and (d) would reduce to three months the period prior to an offence that may be considered by a court when deciding whether to make an order, and amendments (a) and (c) would shorten the length of a ban. Those would not be helpful and I cannot accept them.
There are differences and similarities between alcohol and tobacco, but it is important to put down markers to support positive retailers that follow the letter of the law and to crack down on those breaking it. The hon. Gentleman will know that previous legislation has examined the periods for alcohol, because it can cause immediate and severe damage to individuals and is linked to antisocial behaviour. Time frames for alcohol differ owing to its potentially serious consequences for individuals and the community. I think that we have got the right balance regarding the consideration period for offences and for the length the bans.
I cannot accept the hon. Gentleman’s case and I hope that my hon. Friends will reject it, particularly because many local authorities undertake test purchases of tobacco sales using young people once or twice a year only. It is not practical, therefore, to carry out test purchases within the three-month period that he suggested. Retailers that adopt the legislation, work hard to enforce it and train their staff effectively will not fall foul of the Bill or run the risk of the local authority asking a magistrates court to impose an order. I am confident that that includes the vast majority of retailers. We need to take action against retailers that flout the law persistently by imposing these fair and proportionate orders.
The hon. Gentleman makes a valid point about notification, and I am certainly not opposed in principle to the concept of a notification requirement. If he will let me, I shall be happy to take away that amendment today to look at it in detail. I have sat in opposition, too, and although good points are often made by the Opposition, the Government have to consider their implications in a wider context before they can be accepted. I am not opposed in principle to the hon. Gentleman’s suggestion about notification. I would like to reflect on it and if it is a practical, workable suggestion, I will certainly consider how we can address it at a later stage. I cannot commit as yet to introducing such an amendment at this stage, but I will certainly consider the issue.
I turn to new clause 51, tabled by the hon. Member for Kettering, to which the hon. Member for Enfield, Southgate also referred. It would make it an offence for a child to purchase tobacco or for an adult to buy tobacco on behalf of a child. I recognise the good intention behind the new clause, which tries to bring the legislation into line with what will happen with alcohol. My hon. Friend the Member for Brent, South (Ms Butler) has tabled an early-day motion on this topic and has worked very hard to get support for it. Indeed, my hon. Friend the Member for Ealing, Southall has signed it. I have checked, and he is the only Labour member of this Committee who has signed it so far. I know that he, too, will feel strongly about this matter.
There is merit in looking at this issue again. I can give no commitments to introduce any such measures, but I see the logic, particularly regarding adults over the age of 18 who purchase cigarettes and other tobacco products and give them to individuals under the age of 18. I should like to pray in aid my own daughter, who is 17 but is in school with 18-year-olds. She will not be 18 until next August, but she will have a whole year in which other people are passing their 18th birthdays. As it happens, my daughter does not smoke and I do not think that her friends do, either. However, we are talking about a group of friends who will work and mix together, and it would be quite possible under the current provisions for an individual to purchase cigarettes, even for their own year group, and spread them around the younger members of that group, never mind adults generally.
There is an issue that needs to be examined and although I cannot commit to an amendment, it is worthy of examination. I would take issue with the criminalisation of young people under the age of 18 who may purchase cigarettes. Again, I recognise that there is an anomaly regarding alcohol and cigarettes, but I am not sure that I want to go down the route of criminalising young people under the age of 18 who buy cigarettes. However, I recognise that this is a difficult area and we need to ensure that we put preventive measures in place.
I hope that the change in legislation will also bring about a culture change, and that the under-18s realise that buying cigarettes is not only illegal but bad for them. That is why it is being made. It should set a benchmark for retailers and for people over 18, so that they recognise that that is the age of adulthood and that at that stage, people can make their free decision. However, there needs to be a culture change generally to reduce tobacco usage by the under-18s.
I ask the hon. Gentleman to withdraw his amendment, which I believe would water down the penalties and deterrents. I also ask him to withdraw his amendment on notification, so that I can consider it outside Committee, and his new clause 51. There are issues that I need to discuss with my colleagues in the Department of Health and others. I also need to examine the implications of his suggestions, and of those made by my hon. Friend the Member for Brent, South and other colleagues who have signed the early-day motion.

Nicholas Winterton: Before I call the hon. Member for Enfield, Southgate to respond to the Minister, I say to the Minister that the hon. Gentleman does not need to withdraw his proposals because it is a Government amendment that heads the group.

David Hanson: I am grateful for your usual helpful guidance, Sir Nicholas. Even after 15 years in this place, I occasionally lose track, given the amount of paper before me, of what order the amendments are in.

David Burrowes: Thank you, Sir Nicholas. I welcome the Minister’s comments and accept the need to ensure that the legislation is proportionate.
The notification requirement goes to the heart of the concern of the Association of Convenience Stores and the British Retail Consortium that there should be an opportunity for retailers to get their house in order at an early stage. The Minister mentioned his daughter in the context of those around her who could potentially purchase tobacco. His daughter or her peers could also be behind the counter of a newsagent in a part-time job and have to deal with the situation of a bunch of their peers wanting to purchase cigarettes. Some of them would be 18 and some 17.
New clause 51 would put the responsibility on such a 17-year-old. It would ensure that they were accountable for their actions. They should not be purchasing tobacco. The deterrence from enforcement should be for them, rather than the onus being on the staff behind the counter—who are often part-time and young—trying to enforce the new limit.
A wider concern is that it is important for the Government to properly inform people about the changes. There should be publicity at an early stage, before implementation, which makes it clear to customers and retailers alike that there will be changes and that there will be new sanctions. A concern has been expressed by those organisations and by newsagents in my constituency about the complete lack of information and publicity for the changes on 1 October, which led to confusion and added pressure on small retailers. There must be proper communication of public information by the Government at an early stage.
I will explain briefly another wider concern that was expressed to me this week by the British Retail Consortium. It concerns the word “proportionate”, which I have mentioned a lot. While retailers want to support the Government in introducing tough penalties for tobacco and alcohol sales to those who are under-age, they are also concerned that there should be proportionality in the way that criminal offences are followed up and implemented on the ground. They have expressed concerns about shoplifting. There are increasing pressures on small shops from shoplifting day in and day out. There are often persistent shoplifters. The retailers complain to the police, but it is not followed through. It is thought of by some as a victimless crime, not least by the offenders. We know that that is not the case.
It is important that there is effective implementation. Retailers want to be on the side of supporting new legislation that stops the persistent sale of tobacco and alcohol to those who are under-age, but they also want support from the police to ensure that when they report offences, there is proper follow-through. It is important that that message gets across to retailers on the streets.

Amendment agreed to.

Amendment made: No. 249, in schedule 22, page 231, line 32, at end insert—

‘Sexual offences
27 The amendment made by sub-paragraph (1) of paragraph 12B of Schedule 21 is not to be read as affecting the validity of any supplementary, incidental, consequential, transitional, transitory or saving provisions included in orders or regulations made by the Secretary of State under the Sexual Offences Act 2003 before the commencement of that sub-paragraph.’.—[Mr. Hanson.]

Schedule 22, as amended, agreed to.

Clause 125 ordered to stand part of the Bill.

Schedule 23

Repeals and revocations

Amendments made: No. 58, in schedule 23, page 232, line 15, at end insert—
‘Social Work (Scotland) Act 1968 (c. 49)
In section 94(1), in the definition of “supervision order”, the words “the Powers of Criminal Courts (Sentencing) Act 2000 or”.’.
No. 59, in schedule 23, page 232, line 16, column 2, at beginning insert—
‘Section 25.’.
No. 60, in schedule 23, page 232, line 17, at end insert—
‘Northern Ireland (Modification of Enactments — No. 1) Order 1973 (S.I. 1973/2163)
In Schedule 1, the entry relating to section 25(2) of the Children and Young Persons Act 1969.
Transfer of Functions (Local Government, etc.) (Northern Ireland) Order 1973 (S.R. & O. 1973 No. 256)
In Schedule 2, the entry relating to section 25 of the Children and Young Persons Act 1969.’.
No. 61, in schedule 23, page 233, line 2, column 2, leave out ‘paragraph’ and insert ‘paragraphs 15(b) and’.
No. 62, in schedule 23, page 233, line 11, column 2, at end insert—
‘In Schedule 13, paragraph 35(3).’.
No. 63, in schedule 23, page 233, line 19, at end insert—
‘Children (Prescribed Orders — Northern Ireland, Guernsey and Isle of Man) Regulations 1991 (S.I. 1991/ 2032)
In regulation 8(1)—
(a) sub-paragraph (a)(ii);
(b) sub-paragraph (b)(i), (ii), (iv) and (v); and
(c) sub-paragraph (c)(ii) and (iii).’.
No. 64, in schedule 23, page 233, line 20, column 2, leave out ‘2(2)(b)’ and insert ‘2(2)’.
No. 65, in schedule 23, page 233, line 21, at end insert—
‘Children (Northern Ireland Consequential Amendments) Order 1995 (S.I. 1995/ 756)
Article 7(2) and (3).’.
No. 66, in schedule 23, page 234, line 42, column 2, after ‘33,’ insert ‘, 34(b)’.
No. 67, in schedule 23, page 234, line 42, column 2, after ‘33,’ insert ‘, 39’.
No. 68, in schedule 23, page 234, column 2, leave out line 43 and insert ‘, 131 and 132’.
No. 69, in schedule 23, page 235, line 8, column 2, after ‘paragraphs’ insert ‘37(b),’.
No. 70, in schedule 23, page 235, line 40, column 2, at end insert ‘14,’.
No. 71, in schedule 23, page 235, line 41, column 2, after ‘64(3)(a)(ii),’ insert ‘70(5)(a) and (7),’.
No. 72, in schedule 23, page 235, line 42, column 2, after ‘129’ insert ‘, 131(3)’.
No. 73, in schedule 23, page 236, line 18, column 2, at end insert—
‘Section 92(3).’.
No. 181, in schedule 23, page 236, line 46, at end insert—
‘Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2005 (S.I. 2005/950
Paragraph 30 of Schedule 2.’.

Maria Eagle: I beg to move amendment No. 374, in schedule 23, page 236, line 46, at end insert—

‘Part 2A

Appeals

Title

Extent of repeal
Criminal Appeal Act 1968 (c. 19)
In section 4(2), the words “for the offence of which he remains convicted on that count”.
In section 6—
(a) subsection (5);
(b) in subsection (7), the definition of interim hospital order.
Section 11(6).
In section 14—
(a) subsection (5);
(b) in subsection (7), the definition of interim hospital order.
Section 16B(3).
In section 31, in the heading, the words “under Part 1”.
Section 31C(1) and (2).
Judicature (Northern Ireland) Act 1978 (c. 23)
In section 49—
(a) in subsection (2), the words from “or, where subsection (3) applies” to the end;
(b) subsection (3).
Criminal Appeal (Northern Ireland) Act 1980 (c. 47)
Section 10(6).
Mental Health Act 1983 (c. 20)
In Schedule 4, paragraph 23(d)(ii).
Criminal Justice Act 1988 (c. 33)
In section 36(9), the word “and” at the end of paragraph (ab).
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)
In section 155—
(a) in subsection (1), the words from “or, where subsection (2) below applies” to the end;
(b) subsections (2) and (3).
Criminal Justice Act 2003 (c. 44)
Section 272(1).’.

Nicholas Winterton: With this it will be convenient to discuss the following: Government new clause 84 —Further amendments relating to appeals in criminal cases.
Government new schedule 10—‘Appeals in criminal cases.

Maria Eagle: The amendments introduced by new schedule 10 are mainly to the Criminal Appeal Act 1968, with corresponding changes to the legislation for Northern Ireland. They are minor and technical amendments to various procedures affecting appeals. The changes have been formulated at the request of the senior judiciary and in consultation with it. Their aim is to assist the efficient functioning of the Court of Appeal criminal division, and to resolve anomalies and minor difficulties to which the existing provisions have given rise.
In summary, the changes will impose a time limit on the trial judge’s power to grant a certificate of fitness for appeal and empower the Court of Appeal, when it quashes a conviction, to resentence the appellant for any other offence for which he was sentenced at the same time by the court below. They will transfer to the Court of Appeal certain powers relating to interim hospital orders that are currently exercised by the courts below, and allow a single judge to exercise some of those powers. They will extend the powers of the Court of Appeal to compel the production of documents and the attendance of witnesses; allow a single judge to exercise the power to give leave to appeal in certain interlocutory appeals; and allow a single judge to issue directions that cannot be appealed to a full Court of Appeal. They will ensure that, when the prosecution appeals successfully to the House of Lords, the offender can be compelled to serve out any remainder of his sentence unless the court below has made an order to the contrary, and they will extend the time during which a sentence imposed by the Crown court can be altered by that court.
If members of the Committee wish me to go into more detail about the changes, I will be happy to do so. On that basis, I commend those worthwhile changes to the Committee.

Amendment agreed to.

Amendments made: No. 250, in schedule 23, page 237, line 18, column 2, at beginning insert—
‘Section 86(4).
Section 87(6).’.
No. 251, in schedule 23, page 237, column 2, leave out lines 18 to 20.
No. 252, in schedule 23, page 237, line 36, at end insert—
‘Public Order Act 1986 (c. 64)
Section 29B(3).
In section 29H—
(a) in subsection (1), the words “in England and Wales”; and
(b) subsection (2).
In section 29I—
(a) in subsection (2)(a), the words “in the case of an order made in proceedings in England and Wales,”; and
(b) subsections (2)(b) and (4).
In section 29L(1) and (2), the words “in England and Wales”.’.—[Maria Eagle.]

Vernon Coaker: I beg to move amendment No. 253, in schedule 23, page 237, line 37, column 2, at end insert—
‘In Schedule 2, in paragraph 1(d), the words “in relation to a photograph or pseudo-photograph showing a child under 16”.’.

Nicholas Winterton: With this it will be convenient to discuss the following: Government amendment No. 222
Government new clause 35—Sexual offences committed outside the United Kingdom.
Government new clause 36—Sexual offences: grooming and adoption.
Government new schedule 3—‘Sexual offences: grooming and adoption.

Vernon Coaker: This is another group of important amendments to improve the protection of our children. The Sexual Offences Act 2003, introduced in May 2004, provided a new and comprehensive legislative framework for sexual offences. It has undoubtedly provided law enforcement agencies with more effective tools for tackling sex offenders, but improvements can be made.
The Sexual Offences Act allows for the prosecution of UK citizens and residents for sex offences against children that are committed abroad. We are seeking to strengthen those provisions for UK nationals by removing the condition that the act must be criminalised in the country where it was committed. As hon. Members will know, the condition is known as dual criminality. At present, the extra-territorial provisions extend only to offences against children under the age of 16, even when the UK offence applies to victims under 18. New clause 35 extends the relevant age for the provisions to under 18.
In drafting the new clause, it was felt appropriate to redraft much of the section to make the drafting consistent with other provisions relating to extra-territorial prosecutions. Removing dual criminality and extending the relevant age will help to implement some of the Council of Europe convention on the protection of children against sexual exploitation and abuse. I am pleased that this change to the law will allow us to sign and ratify that convention. However, it is a significant change in its own right; it will mean that British nationals who travel abroad to exploit children will not be able to evade justice by targeting certain countries whose laws offer less protection to children. It will act as a significant deterrent for British offenders who contemplate travelling abroad for the purposes of sexually exploiting children.

Philip Hollobone: It would be helpful if the Minister could give us a list of those countries, as the public would like to know the extent to which the Bill will close the existing loophole.

Vernon Coaker: That is a very good question. If I do not have the list of those countries in the next few minutes, I will write to the Committee with the information. I do not want to speculate but the hon. Gentleman, like me, could probably think of a few countries that would fall into that category. However, I would rather be certain of my facts than say something inaccurate.
The proposal will act as a significant deterrent for British offenders who contemplate travelling abroad for the purposes of sexually exploiting children. They will know that they will not be able to take refuge from British laws and British justice.
The Council of Europe convention is the first international instrument that obliges states to remove the requirement of dual criminality in relation to the extra-territorial prosecution of certain sex offences against children. However, removing that requirement is also included as an optional measure in the protocol to the United Nations convention on the rights of the child on the sale of children, child prostitution and child pornography and the EU framework decision on combating the sexual exploitation of children and child pornography.
Removing dual criminality has been identified by the G8 as an element of good practice in combating travelling sex offenders, a practice that all hon. Members deplore. The change in the law is supported by the Association of Chief Police Officers, the Child Exploitation and Online Protection Centre and several children’s organisations. We are grateful for their support for the change and recognise the international consensus.
We are proud to join other countries in taking steps to remove dual criminality for UK nationals. We want to take responsibility, when necessary, for those of our citizens who travel abroad to exploit children and the amendment will be a significant UK contribution to the fight against travelling sex offenders.
In respect of new schedule 3, in reviewing the implementation of the 2003 Act we have also identified how the offence of meeting a child following sexual grooming created by section 15 could be strengthened in order to allow police to apprehend offenders at an earlier stage in the process of grooming. The primary aim of the offence is the protection of children and that is what underpins new schedule 3.
Section 15 makes it an offence for a person aged 18 or over to meet intentionally or to travel with the intention of meeting a child under the age of 16 in any part of the world if he has met or communicated with that child on at least two prior occasions and intends to commit a relevant offence against that child either at the time of the meeting or on a subsequent occasion. Relevant offences are offences under part 1 of the Sexual Offences Act 2003.
The amendment to section 15(1)(a) of the 2003 Act will make it an offence to arrange to meet a child, having met or communicated on at least two earlier occasions, if at the time of that meeting he intends to commit a relevant offence. In addition, an offence will have been committed if an adult invites a child to his house and the child takes steps to travel there following two earlier communications. That partly replicates the equivalent Scottish offence. That will ensure that the police are able to intervene in certain cases where a child has travelled to meet an offender who is waiting for them at home without the meeting actually taking place.
If an offender travels to meet a child, having communicated with that child on two previous occasions, he has committed an offence and can be apprehended. However, if he invites the child to his home, he does not commit an offence until he has actually met the child. In our view, it is not desirable to allow events to go that far, particularly when we bear it in mind that the offender might be situated abroad. New schedule 3 would allow police to intervene at an earlier stage and apprehend an offender once a meeting had been arranged if that arrangement followed two earlier communications and the offender intends to commit a sexual offence with the child at that meeting. That proposal is supported by ACPO.
Paragraph 2 of new schedule 3 will create an offence when an adoptive parent, but not other members of the adopted family, has sex with their adopted child when they are over the age of 18. That offence will apply to both the adoptive parent and the adoptive child once they are over 18. We think that that will further strengthen our laws and help to combat the so-called trade of sex tourism, which we all deplore. It is a despicable act. By strengthening the law in this way, we look to ensure that many more of those who seek to abuse children will be captured and put where they need to be—in prison.

Amendment agreed to.

Amendments made: No. 254, in schedule 23, page 238, line 15, column 2, at end insert—
‘In section 54(2), the words “and the Central Police Training and Development Authority”.’.
No. 255, in schedule 23, page 238, leave out line 31.
No. 256, in schedule 23, page 239, line 20, column 2, leave out ‘paragraph 73’ and insert ‘paragraphs 73 and 119’.—[Mr. Coaker.]

Edward Garnier: I beg to move amendment No. 201, in schedule 23, page 239, line 20, at end add—

‘Part 8
extradition

Title

Extent of Repeal
Police and Justice Act 2006 (c.48)
Section 53(2)(b).
In Schedule 13, paragraphs 4 to 6 together with the cross heading immediately preceding them.’.

Nicholas Winterton: With this it will be convenient to discuss the following: Amendment No. 199, in clause 128, page 85, line 11, at end insert—
‘(aa) section [Restriction on extradition in cases where trial in United Kingdom more appropriate];’.
New clause 26—Restriction on extradition in cases where trial in United Kingdom more appropriate—
‘(1) The Extradition Act 2003 (c. 41) is amended as follows.
(2) In section 11 (bars to extradition)—
(a) at the end of subsection (1) there is inserted—
“(j) forum.”;
(b) in subsection (2), for the words from “12” to “apply” there is substituted “12 to 19B apply”.
(3) After section 19A there is inserted—
“19B Forum
(1) A person’s extradition to a category 1 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that—
(a) a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and
(b) in view of that an all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.
(2) For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.
(3) This section does not apply if the person is alleged to be unlawfully at large after conviction of the extradition offence.”
(4) In section 79 (bars to extradition)—
(a) at the end of subsection (1) there is inserted—
“(e) forum.”;
(f) in subsection (2), for “Sections 80 to 83” there is substituted “Sections 80 to 83A”.
(5) After section 83 there is inserted—
“83A Forum
(1) A person’s extradition to a category 2 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that—
(a) a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and
(b) in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.
(2) For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.
(3) This section does not apply if the person is alleged to be unlawfully at large after conviction of the extradition offence.”’.
Amendment No. 200, in title, line 8, after ‘criminality;’, insert ‘to amend the Extradition Act 2003;’.

Edward Garnier: Amendments Nos. 199 to 201 essentially tidy up the wording of the Bill to reflect the substantive amendment of new clause 26, which deals with extradition. For example, amendment No. 200 deals with a long title.
The Committee will perhaps remember that a great deal of heat was generated in a previous sitting, as well as a certain amount of light, when amendments were made to the Extradition Act 2003 that related to the extradition of people who had allegedly committed offences in the United States but who had little connection with the US. Those amendments render them liable for extradition to the US from the UK.
It is coincidental, but I understand from today’s news that the NatWest three have pleaded guilty to a single count that relates to a number of counts alleged against them for various forms of dishonest financial activity.
I do not intend to say anything at all about that case, although it does illustrate the principles that we should think about today. I will not say anything about it because we do not know why the defendants pleaded guilty on that count, although we could guess. At this stage, I do not want either to discuss the relative merits or demerits of the way in which fraud and white-collar crime are dealt with by the British jurisdiction and either the United States or the Texan jurisdiction. Suffice to say that in the United States, following the collapse of Enron and the resulting fallout, the courts are much more severe in their prison sentencing than I suspect that British courts would be in similar circumstances.
What I want is to do is ask the Committee to revisit the question of forum. I do not wish to discuss the different tests that apply in Britain and the United States. From my memory of speaking in the debates on extradition relating to the 2006 Act, my understanding is that, in order to establish the basis of application for extradition, in the United States it is simply necessary to assert that a crime has been committed, whereas in the United Kingdom one needs to overcome the higher hurdle of establishing that there is an arguable case, which is fit to go to the jury. However, that is not part of this discussion which relates to the issue of forum. I hope that anybody who has taken the trouble to look at new clause 26 will see that the arguments make themselves off the face of the page; however, I will briefly recite my arguments in respect of the new clause.
On page 723 of the amendment paper, it can be seen that we wish to amend the law so that a British judge considering an extradition application to remove a person in this country who is suspected of a crime in another jurisdiction should take into account that factors that we have set out. I do not need to discuss whether it is a category 1 or 2 country—the principles are the same. We propose that a person’s extradition to either category of territory should be barred by reason of forum if, and only if, it appears that,
“(a) a significant part of the conduct alleged to constitute the extradition offence is conducted in the United Kingdom, and
(b) in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.”
In support of subsection (1)(b) of proposed new section 83A to the Extradition Act 2003, subsection (2) says that,
“the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.”
I said that I would not get involved with the NatWest three, but let me raise one point. There will be cases, particularly in the financial services industry where communications take place electronically. It may be that a number of financial service houses in this country use American e-mail servers. Although the alleged fraud may take place in this country—it may be planned and executed here—and the victim may be an individual or a corporation wholly or largely resident in this country, the mere fact that the electronic signals go via an American internet server means that the United States, either federally or by means of state jurisdictions, can claim jurisdiction over the alleged criminality.
That brings with it tremendous worries. I suggest that the United Kingdom should not release defendants in those circumstances where there is only a flimsy or tangential relationship between the claimant country and the UK. That must be reinforced, surely, if the prosecuting authorities in this country, or in Scotland and Northern Ireland, have not taken any steps to launch prosecution proceedings themselves, or indeed have considered them and have made a positive decision not to prosecute, particularly where the victim of the alleged fraud has made a positive decision not to complain or not to complain to the level of inviting the police or the Serious Fraud Office or any of the other prosecuting authorities—HMRC, perhaps—to do anything about it.
I suspect that it is a view widely held on the Opposition Benches, if not completely on the Government Benches, that our signing of the extradition agreement with the United States, which led to the amendments to the Extradition Act 2003, did not produce an even bargain. I suggest that a number of British citizens or residents of the United Kingdom have been, or could be, gravely disadvantaged by the current extradition arrangements. It therefore seems that we should do what the Irish and a number of other European jurisdictions have done, and make provision to enter into the judge’s considerations the issue of forums, as described in the new clause.
I hope that I have painted the case sufficiently clearly for the Government to be able to explain why they should not accept it. If I may say so, on the last occasion that I discussed this in the days of the old Home Office, the then Under-Secretary, who is no longer in that post, did not respond terribly effectively on behalf of the Government. I look forward to hearing whichever of the Ministers it is who has the grave and weighty duty to reply to this debate doing so rather more effectively.

David Heath: I have debated matters relating to our extraordinarily one-sided extradition agreement with the United States more often than I care to think of over the last few years. As it happens, I was speaking from this Bench—literally this Bench, I think—when the matter was first debated by a Statutory Instrument Committee, when my hon. Friend the Member for Southport (Dr. Pugh) and I were the only ones to oppose the initial statutory instrument that brought into effect the treaty, after it had been signed. We went on to encourage our right hon. and hon. Friends to oppose it as well, when it was put before the House, so we have a unique position of opposition in that respect.
I have some sympathy for those who, at the first instance, took the words of the Government at face value because they were told by the then Minster that it was a necessary defence against terrorism; that it would only be used for terrorist offences; that it certainly would not apply to white-collar offences, and that in any case it was a balanced agreement. Transparently, it was not. Since then, what has been elucidated on the several occasions that we have discussed the matter is that we are unique as a nation in accepting such an unbalanced position. The other states that have a similar treaty obligation in terms of the evidential requirement for extradition have safeguards: for example, France has constitutional safeguards that it will never extradite a French citizen—a fairly convincing safeguard—and as the hon. and learned Member for Harborough said, the Republic of Ireland has a forum provision, as proposed in new clause 26, to which my hon. Friends and I have added our names.
The issue is relevant this week because of the guilty plea of the NatWest three. It is not for us in the Committee to debate the whys and wherefores of that case, other than to say that the current position is a result of plea bargaining. One may be reasonably well assured that, if the guilty plea had not been entered on that one count and they had been found guilty of the several other counts on which they were arraigned before the court in Texas, they would have been given substantial jail sentences.
The key issue is that not only do we have a one-sided treaty with the United States, whereby we are required to show a different standard of proof for the extradition of United States citizens to the UK from that which is required for the extradition of UK citizens to the United States, but the United States is unique in its federal and state jurisdictions in assuming a high degree of extraterritorial—indeed, universal—jurisdiction on many matters. That has enormous consequences for our sovereignty of jurisdiction, because, in effect, the United States judicial authorities can extradite British citizens to an American court to stand trial for offences that have no geographical connection with the United States. A person who is extradited does not need ever to have visited the United States or to have had direct business dealings with a person there to be subject to an extradition request. It is very difficult for the authorities in this country to refuse a request, because the terms of evidential proof are little more than an identity assessment and the fact that a law enforcement officer—perhaps a sheriff—has asked for extradition. That puts British citizens in a very difficult position.
The hon. and learned Member for Harborough, in his new clause, has quite rightly stated that it would apply not to a particular country but to any country. However, it would apply particularly to the United States because of that assumed universal jurisdiction, which is the norm for so many of their offences and jurisdictions.

Vernon Coaker: I hesitate to dip into these waters, but does the hon. Gentleman think that the evidential test is an absolute principle for extradition? I have started to examine different extradition treaties and arrangements, and there is considerable variation. In the 1972 treaty, which preceded the current treaty, we had probable cause and the US had prima facie, so although I take the point that he tries to make, one can argue that there never has been absolute parity. Surely the issue is about the process used to ensure that people receive fair and due process.

David Heath: The Minister makes a fair point that has been made many times. In return, I have many times said, no, there is not absolute parity in many of our arrangements. However, it does not prevent me from stating that the negative parity we now have with the United States is a singular disparity—one that I do not accept. It is quite wrong. If the claim of extraterritorial jurisdiction did not exist, it would be bad enough. If that claim did not exist, we would be dealing with offences committed in the territory of the United States or one of its dependencies, or against a US person—an individual or company. But we are not. It is the combination of the two makes us uniquely vulnerable now, in comparison with any other country in the world. Not only are we uniquely vulnerable to extradition to the United States, but the fact that it is not reciprocated simply adds insult to injury. That is why so many of us are convinced that the arrangement needs to be changed.
The provisions proposed by the hon. and learned Member for Harborough, which I do not need to spell out again as he has already done so, provide a safeguard against the capricious use of the extradition powers in circumstances where a British court would not convict, or where the British legal authorities would not indict. That seems a sensible precaution, which simply avoids any abuse within the American jurisdiction of the arrangement.
I think that we should renegotiate the treaty and put safeguards into it, but that is not a matter for this Committee. The new clause is a matter for this Committee, because it provides an essential safeguard that is within our powers. Accepting the new clause would bring us into at least the same sort of relationship that other countries that have agreed bilateral arrangements with the United States on non-reciprocal evidential tests have achieved for their own jurisdictions. It is right that we should do so for the protection of the British citizen and of the British judicial system which, at the moment, is open to predation by the Americans.

Vernon Coaker: I thank Opposition Members again for the measured way in which they have spoken to their amendments. It appears to me, as someone who is not legally trained, that there are different opinions on this serious matter. That is why I made the point about absolute principle. I appreciate the measured way in which the hon. Member for Somerton and Frome responded to me and accepted that there is a debate. If you look at the extradition treaties that people have negotiated between each other, across the world, there is not absolute parity in the evidential test in all the arrangements.
Even within the legal profession, there are different opinions. When I re-read the House of Lords debate, I also re-read some of the remarks made during the debate in the House of Commons. It was interesting to see what some of the Law Lords had said. In respect of amendments tabled on the need for a judge to determine in which jurisdiction the prosecution should take place, I found that, rather than taking the same view as the Government—that it is a matter for the prosecution authorities to determine, based on where the best chances of successful prosecution can be had—Lord Dilhorne, a distinguished judge, stated:
“The judge must keep out of this area. He should not have or appear to have any responsibility for the institution of prosecution.”
I appreciate that that is not a universal view. People could quote another distinguished Law Lord from Hansard expressing a completely different view.

Edward Garnier: I am just wondering which Lord Dilhorne it was. Some Lord Dilhornes are better lawyers than others.

Vernon Coaker: Whichever Lord Dilhorne I am referring to, I shall let the hon. Gentleman know.
I come to the matter as a non-lawyer. The hon. Member for Somerton and Frome, and the hon. and learned Member for Harborough, are trying to ensure that the process is fair, that it does not disadvantage anyone and that justice is seen to be done. I decided to look at the extradition process—what somebody would have to go through before they were extradited, notwithstanding the forum question. It seemed to me to be a fair process in which the interests of justice are served. Prosecutors have to decide whether or not to support an extradition, and the requesting authority has to make a request to us. It is a considerable process and, if the Committee does not mind, I shall run through it.
The CPS acts as the representative authority for the requesting territory. All extradition cases are considered at Bow Street magistrates court, which may make a provisional arrest. There is an initial hearing in front of a district judge, who must inform the person about the content of the extradition request, explain what is going on and say whether or not they will grant bail—all the various things that one would expect due process to include. The district judge can discharge the person if the certified request is not received by the court within the required time. Then there is an extradition hearing. Everything that the district judge must do in that hearing is laid out: the judge decides whether the documentation is in order and the individual is the person who is named; he also examines the credibility of the offence and whether any of the bars to extradition apply. The bars listed in the Extradition Act 2003 include dual criminality, problems with evidence, requests made for improper reason, double jeopardy, injustice due to ill health or passage of time, and human rights.

Edward Garnier: The one thing that the district judge cannot take into account is the issue of forum, as we have outlined in our new clause.

Vernon Coaker: What I am saying to the hon. and learned Gentleman is that, in our view, the current process is fair and reasonable. It is for the prosecuting authorities to determine in which jurisdiction there is the best chance of a successful prosecution. Subject to that, however, the actual process by which someone is removed from this country and extradited to, for example, the United States is quite a formal process in which due process of law can take place. There is a hearing and then a decision, after which anyone subject to extradition can appeal. Appeals against the decisions of the district judge or the Home Secretary go to the administrative court. Notice of appeals must be given within 14 days.

David Heath: That is the point. The appeal is against the procedure—it is based on the procedural elements being incorrect. For example, a person has been incorrectly named, the indictment has been incorrectly filled, or something along those lines. It is no longer the evidence that is tested to see whether there is prima facie case.

Vernon Coaker: The court would have to determine some of the points raised by the Gentleman; otherwise, it would contravene convention rights within Human Rights Act 1998. That is another thing that the court here explicitly has to do. Of course, on a point of law, the appeal can ultimately go to the House of Lords.
In respect of the issue of forum, the Government’s view is that we do not wish to blur the distinctions between the judges and the independent prosecuting authorities. It is for the prosecution to determine the appropriate jurisdiction. Alongside that, there is a due process of extradition that protects the rights of the individual in the way that I have briefly outlined. I ask the hon. Gentleman to withdraw his amendment.

Edward Garnier: The Minister did not utter a single untruth in his argument. He did not say anything that was false, and he correctly stated what happens. But what does not happen is that the judge takes into account the question whether the significant part of the conduct that constitutes the extradition offence is committed in the United Kingdom. He does not take into account whether the prosecution, let alone the victim, had done anything about it. Everything that the hon. Gentleman said is perfectly true. Yes, if people are subject to an extradition request from another territory they go through that process. The judge considers the assertions that are made against the defendants and if they come within the Extradition Act 2003, off they go and there is not much they can do about it, as the NatWest three would be the first to tell him if they were here to do so.
What we are complaining about is that, unlike the Republic of Ireland and some other perfectly respectable jurisdictions in the industrialised world, we do not pay any attention to the flimsy connection between the other territory and this one in relation to the facts of the crime. When debating whether the British courts should try a civil or a criminal case here when some other more convenient forum is available, we do the reverse of current process: we look at the facts of the civil dispute or the crime and ask if it has anything to do with us or very little to do with us. If it has nothing or very little to do with us, our courts do not permit the matter to be litigated or prosecuted in our courts, civil or criminal. My point is that it is not fair to impose a burden upon citizens in respect of an offence if there is very little connection with the requesting territory.
The Minister dealt with all sorts of points, but not with my arguments, which were supported by the hon. Gentleman. Unless he can persuade me that he will change his mind—I am happy to take an intervention—I regret that I will press the new clause to a Division.

Nicholas Winterton: We are, in fact, debating amendment No. 201 and the vote would be on that amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

Schedule 23, as amended, agreed to.

Clause 126 ordered to stand part of the Bill.

Clause 127

Extent

Amendments made: No. 217, in clause 127, page 84, line 15, after ‘follows’ insert
‘and to any other provision of this Act’.
No. 310, in clause 127, page 84, line 15, at end insert—
‘(1A) Subsection (1) does not apply to Part 4, the following provisions of which extend to England and Wales only—
(a) paragraphs 1 to 5, 8 and 9 of Schedule 7 and sections 30 to 34, so far as relating to complaints about matters falling within any of paragraphs 1 to 5 of that Schedule;
(b) paragraphs 1 to 4 of Schedule 8 and sections 35 and 36, so far as relating to deaths falling within any of those paragraphs;
(c) section 37(3)(a) to (f);
(d) sections 37(apart from subsection (3)(a) to (h)) and 38, so far as relating to requests by the Secretary of State which specify matters which—
(i) relate to events which have (or may have) occurred as mentioned in any of paragraphs (a) to (f) of section 37(3); or
(ii) the Secretary of State considers are (or may be) linked to such events;
(e) sections 39 to 41, so far as relating to investigations of complaints, deaths or requests mentioned in paragraph (a), (b) or (d) above;
(f) sections 43 and 47, so far as relating to complaints mentioned in paragraph (a) above or investigations of deaths or requests mentioned in paragraph (b) or (d) above.’.
No. 311, in clause 127, page 84, line 18, leave out paragraph (a) and insert—
‘(a) sections 29, 37(3)(g) and (h), 42, 44 to 46, 48 (subject to subsection (5)), 49 to 52 and Schedule 10;
(aa) paragraphs 6 and 7 of Schedule 7 and sections 30 to 34, so far as relating to complaints about matters falling within either of those paragraphs;
(ab) paragraphs 4 to 6 of Schedule 8 and sections 35 and 36, so far as relating to deaths falling within any of those paragraphs;
(ac) sections 37 (apart from subsection (3)(a) to (h)) and 38, so far as relating to requests by the Secretary of State which specify matters which—
(i) relate to events which have (or may have) occurred as mentioned in paragraph (g) or (h) of section 37(3); or
(ii) the Secretary of State considers are (or may be) linked to such events;
(ad) sections 39 to 41, so far as relating to investigations of complaints, deaths or requests mentioned in paragraph (aa), (ab) or (ac) above;
(ae) sections 43 and 47, so far as relating to complaints mentioned in paragraph (aa) above or investigations of deaths or requests mentioned in paragraph (ab) or (ac) above.’.
No. 312, in clause 127, page 84, line 35, leave out paragraph (c).
No. 367, in clause 127, page 84, line 36, at end insert—
‘( ) section (Northern Ireland Commissioner for Prison Complaints: disclosure of information etc);’.
No. 218, in clause 127, page 84, line 37, leave out paragraph (d) and insert—
‘(d) sections 64 to (Special rules relating to providers of information society services) and Schedule (Special rules relating to providers of information society services);’.
No. 275, in clause 127, page 84, line 37, at end insert—
‘( ) section 79(6) and (7) (so far as relating to any provision of Part 3 of the Magistrates’ Courts Act 1980 which extends to Northern Ireland);
( ) sections (Transfer of certificates to central authority for Scotland), 80 and 81 and Schedules (Penalties suitable for enforcement in England and Wales or Northern Ireland) and 16;’.
No. 219, in clause 127, page 84, line 38, leave out paragraph (e).
No. 368, in clause 127, page 84, line 40, leave out paragraph (a) and insert—
‘(a) sections (Appointment etc. of Northern Ireland Commissioner for Prison Complaints) to (Northern Ireland Commissioner for Prison Complaints: power to confer new functions) (except section (Northern Ireland Commissioner for Prison Complaints: disclosure of information etc.)) and Schedules (The Northern Ireland Commissioner for Prison Complaints), (The Northern Ireland Commissioner for Prison Complaints: complaints remit), (The Northern Ireland Commissioner for Prison Complaints: deaths remit) and (The Northern Ireland Commissioner for Prison Complaints: controlling authorities);’.—[Maria Eagle.]

Nicholas Winterton: At this stage, I indicate to the Committee that I am minded to have a break. I have been sitting in this Chair for nigh on three hours without any movement, except up and down. I feel the need for a break of 20 minutes. It can come now or a little later. I am happy to take advice from the hon. and learned Member for Harborough.

Edward Garnier: There is only a certain amount of advice that I can give you, Sir Nicholas. I have a suspicion from looking at the annunciator screen that we are moving towards a vote on the Floor of the House. There is an hour and a half’s business downstairs and they are likely to have a Division at 4.26 pm. I am all for double breaks if—I was going to say your lordship, but I am in the wrong forum. I am either in the wrong room or I am anticipating myself. If you want the break and the vote to coincide, that is fine by us, Sir Nicholas, but if you want to break now, that is equally fine.

Nicholas Winterton: I am very happy with that. That is why I allowed input. If that is the case and a Division takes place, I will extend the suspension to half an hour. I will suffer in the Chair for a further 26 minutes.

Charles Walker: We will suffer with you, Sir Nicholas.

Nicholas Winterton: I am grateful for that. I am sure that we will continue to make excellent progress until 26 minutes past the hour.

Edward Garnier: I beg to move amendment No. 18, in clause 127, page 84, line 40, at end insert—
‘(aa) section [Amendment of the Criminal Law Act (Northern Ireland) 1967];’.

Nicholas Winterton: With this it will be convenient to discuss the following: New clause 2—Amendment of the Criminal Law Act 1967—
‘(1) The Criminal Law Act 1967 (c. 58) is amended as follows.
(2) In section 3 (use of force in making arrest, etc.), after subsection (1), insert—
“(1A) Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—
(a) the degree of force used was grossly disproportionate, and
(b) this was or ought to have been apparent to the person using such force.
(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.
(1C) In this section “building or part of a building” shall have the same meaning as in section 9 of the Theft Act 1968 (c. 60) (burglary).”.’.
New clause 3—Amendment of the Criminal Law Act (Northern Ireland) 1967—
‘(1) The Criminal Law Act (Northern Ireland) 1967 (c. 18 NI)) is amended as follows.
(2) In section 3 (use of force in making arrest, etc.), after subsection (1), insert—
“(1A) Where a person uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter, that person shall not be guilty of any offence in respect of the use of that force unless—
(a) the degree of force used was grossly disproportionate, and
(b) this was or ought to have been apparent to the person using such force.
(1B) No prosecution shall be brought against a person subject to subsection (1A) without the leave of the Attorney General.
(1C) In this section “building or part of a building” shall have the same meaning as in section 9 of the Theft Act (Northern Ireland) 1969 (c. 16 NI)) (burglary).”.’.

Edward Garnier: As before, amendment No. 18 is not the central proposal in the group. New clauses 2 and 3 contain the guts of our debate. I can describe the issue via new clause 2 because new clause 3 is in exactly the same terms, only extending the law to Northern Ireland as well as England and Wales, which are covered by new clause 2.
As you will know, Sir Nicholas, self-defence by householders has been an issue of some controversy for the past half dozen years or so. At least three Conservative Back Benchers have introduced private Member’s Bills in this regard. I make no secret of the fact that new clauses 2 and 3 are stolen from the private Member’s Bill introduced by my hon. Friend the Member for Vale of York (Miss McIntosh). There would be no point in doing otherwise, because everybody knows about it. It is part of the history of this legislation.
I have no doubt that the Minister will be well prepared to deal with the arguments that I shall make. I hope that I am not breaching any confidence, but I want also to place it on the record that the Secretary of State for Justice and his Ministers very kindly hosted a meeting attended by my hon. Friends the Members for Enfield, Southgate and for Arundel and South Downs (Nick Herbert) and the hon. Member for Somerton and Frome and perhaps others—I do not remember. At any event, we had a meeting at the Department to discuss this question. I know that, following their consideration, the Government intend to table some form of provision on Report or later, but that should not inhibit us from having a brief discussion about the issue now, because we do not often have the chance to do so.
The current law of self-defence is governed by section 3 of the Criminal Law Act 1967, which says:
“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”
In 2005 the Home Office, the Crown Prosecution Service and the Association of Chief Police Officers came to the conclusion that the public perhaps did not fully understand the law of self-defence. ACPO and the CPS then produced a leaflet called “Householders and the use of force against intruders”, which endeavoured to explain the law of self-defence, particularly in relation to householders. It asked and attempted to answer the following questions:
“What is the purpose of this statement? Does the law protect me? What is reasonable force? Do I have to wait to be attacked? What if the intruder dies? What if I chase them as they run off? Will you believe the intruder rather than me? How would the police and CPS handle the investigation and treat me?”
The first time that I ever saw that leaflet was in the Department when I went to the meeting with the Secretary of State and his Ministers and officials. Perhaps I just do not go to the right places to find these leaflets. It seemed to be a sensible leaflet in that it tried to provide some form of reassurance to those who were fearful that they would get into trouble if they hurt someone who invaded their property with a view to committing a crime.
Since then the Secretary of State has said that he wanted to review the issue and that review is ongoing. It will result perhaps in some provision coming forward on Report or in the other place. I hope that I am not breaching a confidence but I think that the Government are considering three options. The first is to do nothing, the second is to clarify the existing law, and the third is to legislate to do something more. I want to try to persuade the Government that the do nothing option is not an option. The clarification option is a possibility so long as the clarification goes beyond what the ACPO-CPS leaflet does and is done in a more public fashion. The third option may be the only way forward in that it creates a degree of publicity about what the Government are doing beyond the simple issuing of guidance and leaflets. Perhaps I am looking for a combination of options two and three.
We are at odds with the Government, as are Back Benchers, over the question of what is the appropriate level of force that a householder can use. There is also a less serious dispute about whether any advance in the law should only cover householders or should also cover people who are defending themselves, others or their property outside a building. I do not think that that dispute between the Government and the Opposition will last; there is clearly a way through that. When a person is defending himself inside his building, other factors will impinge on his mind. Equally, why should not a person defending himself from an attack on the street have the same protection, or at least as adequate protection, as I seek for a householder?
New clause 2(2)(1A) refers to a person who
“uses force in the prevention of crime or in the defence of persons or property on another who is in any building or part of a building having entered as a trespasser or is attempting so to enter”.
I am not going to go to the cross demanding that the law should be as that proposes and nothing else. If we can devise a form of words or a new level of clarity that covers people in public places as well as in buildings, I would applaud that.

Sally Keeble: Will the hon. Gentleman say a bit more about public places? One of the differences is that a person who defend themselves in a public place might put another person at risk, perhaps by hurling a brick at someone. Does he think that the same protection should apply in all circumstances? Should not the person in the public place also have regard for the safety of others in that place?

Edward Garnier: Essentially, we are looking at a subjective appreciation of what is going on. Whether a person defends themselves when attacked in their own house late at night when it is dark or out in the street, the court would look at what was going through their mind at the time. I hope that this will not be thought too self-regarding, but I would like to read out a summing-up.

Maria Eagle: Whose is that, then?

Edward Garnier: It is mine. What it says is not original to me, but is borrowed from the Judicial Studies Board’s guidelines. It might help the hon. Member for Northampton, North. It sets out what a jury should consider when dealing with a case of self-defence. This very learned judge said to the jury:
“The law in relation to self defence is that a person who is attacked or believes that he is about to be attacked may use such force as is reasonably necessary to defend himself. If that is the case he is acting in lawful self defence and is entitled to be found not guilty. It is for the prosecution to make you sure that the defendant was not acting in lawful self defence, not for him to prove that he was. A person only acts in lawful self defence if in all the circumstances he believes that it is necessary for him to defend himself and if the amount of force which he uses in doing so is reasonable. So there are two main questions you have to consider: Did the defendant honestly believe or may he honestly have believed that it was necessary to defend himself? You may think it self evident that a person who is the aggressor does not act in self defence and if you are sure that he did not honestly believe it was necessary to defend himself then self defence does not arise in this case and, so long as you find that he assaulted”
the victim
“and caused the injuries he sustained, he will be guilty of unlawful wounding. But if you decide that he was or may have been acting in that belief you must consider the second question: Taking the circumstances and the danger as the defendant honestly believed them to be, was the amount of force he used reasonable?
Force used in self defence is unreasonable and unlawful if it is out of all proportion to the nature of the attack, or is in excess of what is really required of the defendant to defend himself. When deciding whether or not the force used by”
the defendant
“was reasonable you may want to think about the following: what was the nature of the attack that you find was being made on him by”
the victim.
“It is not in dispute that”
the victim
“was on his own so there can be no question of”
the defendant
“having to repel a larger attack but remember that a person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary. If you conclude that the defendant did no more that he honestly and instinctively thought was necessary to defend himself you may think that would be strong evidence that the amount of force used by him was reasonable. If you are sure that the force used by the defendant was unreasonable, he cannot have been acting in lawful self defence and he is guilty of unlawful wounding, but if the force used was or may have been reasonable then he is not guilty.”
That related to the stabbing of the victim at a bus stop—a public place—in Clapham Common.

Sally Keeble: The difference between someone in their own home and someone in a public place is that the person in a public place can put other people at risk. This is an intervention, not a speech.

Nicholas Winterton: It is.

Sally Keeble: Exactly. Does the hon. and learned Gentleman not see the difference between someone at home and someone in a public place whose defensive action and split-second response might involve a risk to other members of the public? I shall think carefully before I delay our proceedings with another intervention.

Edward Garnier: I may be entirely wrong, but I like to think that I have set out the principles that a jury must examine when considering whether someone has a defence of self-defence in a given set of circumstances. The assault case in which I was involved happened in a public place, but matters would have applied equally had it happened in a private place. We need not get into the detail about what sort of action the householder or the person attacked in the street takes. Clearly, if someone comes at us with a feather duster and we shoot him dead, that would be a disproportionate response.

Maria Eagle: Grossly.

Edward Garnier: As the Under-Secretary of State for Justice says, such a response would be grossly disproportionate.
We could have an interesting discussion about the matter for some time, but I do not want to delay the proceedings any more than the hon. Member for Northampton, North does. Perhaps she will let me finish my point and she can then respond if she so wishes. However, she has succeeded in making me lose the thread of my argument, which is a considerable achievement.
Although the summing-up that I gave as an example was quite clear, it must be said in complicated language. It is full of double negatives, and language such as “If this or that, if not this or that”. The jury must think carefully about the issues involved. I accept that, in a sense, that does not matter as it is what juries must do, but the use of “reasonable” can sometimes lead members of the jury astray and to wonder, “Is this what I would have done? Is this what a reasonable person would have done in the circumstances?” If we put the adverb “grossly” in front of the adjective “disproportionate”, we would have a set of circumstances that the jury would understand more clearly. That is the point of the new clause. I want to afford clear protection to those who are attacked, either in their house or in a building, as we have proposed under the new clause. However, I look forward to that provision being extended to incidents that happen in public places too.
Repetition sometimes, but not often, makes a bad point better. It sometimes makes a good point better. I hope that I have said enough for the Minister to have understood my argument and, albeit that this is not a day for voting on the issue, for her to say when she returns to the Bill on Report, “Yes, we understand what you are about. We think that the householders of this country need to have greater security by knowing that they can do quite a lot to defend themselves and, even though they might cause quite serious harm to the victim who invades their space, bodies or privacy, they can be reassured that the Government and Parliament, as a whole, are on their side.”

David Heath: I find myself in a degree of difficulty with this subject, which I have now debated several times in the past few years. I have the greatest of sympathy with those who want to ensure that householders, or those who intervene to defend themselves or others in the street in the courageous way that our derring-do Lord Chancellor so frequently exhibits, are protected under law and do not find themselves on the wrong side of the law when doing their civic duty and their personal duty to protect themselves, their loved ones and their possessions. However, I have also always taken the view that there is no deficiency in the law—that the law, if properly interpreted, provides a clear view that there is no problem with protecting oneself in a reasonable, proportionate way. I therefore find myself arguing for the principle, but having difficulty seeing why the law needs to be changed.
Of course, this all arose from the wretched Tony Martin case—a very difficult case. I have yet to hear any commentator who actually believes that under any change that we are likely to make in the law, Tony Martin would have been anything other than guilty of a serious offence for the way in which he conducted himself on that day. In a way, we should rule out from our consideration the circumstances of Tony Martin and think about a more reasonable householder trying to protect their property or their family.
I do not see a need for the change in the law, but nor do I have a problem if the law is changed, because it would simply be a different way of expressing the same view in law. This is where I think the deficiency is: whether we have the law as it is, or the law as it might be, or whether we have a leaflet—I agree with the hon. and learned Member for Harborough that it is an excellent leaflet; I wonder how many people have read it, but it sets out matters clearly—none of that will make the slightest difference if PC Plod does not understand, when arriving at an incident, what he is supposed to do. He might take the erroneous view, which happens far too often, that when a burglar says, “’E ’it me over the ’ead, Officer”, it is his job to arrest the householder and not the burglar. It is still his job to arrest the burglar unless there is very clear and disproportionate action on the part of the householder. Far too often, we hear reports, which are more than anecdotal, of people who have taken steps to protect themselves or their property and find themselves subject to intensive questioning, rather than congratulated on having foiled an attempted crime. That is wrong, but the fault lies with the investigating officers and occasionally, the prosecuting authorities, rather than in the letter of the law, because it is rare for the matter to go to a court and a case to be found against the individual.
I am perfectly happy for the Lord Chancellor to decide that, contrary to the position that the Government have taken for the past six years, they now want to change the law. I understand a sense of pique on the part of Conservative colleagues who, having repeatedly proposed a change in the law, only to be told that it was unnecessary, are now told by the Lord Chancellor that perhaps it is necessary after all. At the end of the day, whether we change the law or not—I take a ruthlessly agnostic view at the moment—the most important thing is to get it into the heads of our police officers across the country, not just chief constables but policemen on the beat, what the appropriate reaction is when they arrive at an incident and they find that there has been an attempt to protect the property of the individual.

Maria Eagle: We have had a short, sharp and high-quality debate; I will seek to emulate that brevity and quality while making the points that need to be made. I am grateful to the hon. and learned Member for Harborough for tabling the amendments, and for indicating, when he spoke to new clauses 2 and 3, that he is not going to die in a ditch on restricting the provision to buildings and households in the way that it is currently set out. That enables me to tear up at least half of my speech, which I am happy to do, because there are problems with that approach.
My right hon. Friend the Secretary of State indicated on Second Reading that he intends to make changes, because he believes that it is necessary to do so. As part of the Department’s consideration we have, as the hon. and learned Gentleman indicated, sought to communicate our views and to invite interested hon. Members from all parties to share their thinking with us. That will continue between now and when the Government table their new clauses on the issue, which will be on Report, I hope. Further meetings are planned between myself, officials and hon. Members who have expressed an interest in the matter.
Given what the hon. and learned Gentleman said about keeping the issue of householders at the forefront of his mind, I suspect that the matter will come down to the definitions of grossly disproportionate, disproportionate and reasonable. It is worth saying something about that. The hon. Member for Somerton and Frome is quite right to say—I think that any lawyer, including the hon. and learned Member for Harborough, would accept this—that “reasonable” is an incredibly useful concept. It is well known in law that it is extremely flexible, and it is well understood by lawyers and by courts, although perhaps not quite so well by members of the public. It contains the flexibility that allows it to be applied in any number of circumstances, and that is its great strength.
It is undoubtedly the case, as the hon. Member for North-West Norfolk (Mr. Bellingham) said in 2003 when he first introduced his Bill, that if there is even the slightest confusion as to the law, it is unreasonable to expect a householder, during a few fearful seconds at the top of the stairs in the dark, when he is being menaced and perhaps threatened with a weapon in his own home, to guess what “reasonable” is. That is of course the mystery that we seek to put right, and there is widespread agreement on that. Even the hon. Member for Somerton and Frome, who is determinedly agnostic about whether the law needs to be changed in any way has acknowledged that that is the case.
The problem that we are left with and which we will be working on, is that of whether the test of “grossly disproportionate” is the correct one. There are legal and human rights issues about which I can say a word or two, based on some real concerns. One of the reasons for the desirability of action on the test for self-defence is that, as the hon. Member for North-West Norfolk put it, no one expects a person in such a situation to be able to respond with total legal knowledge.
Under the new clause, the person using the force would be deprived of the defence only if the degree of force used was grossly disproportionate, and if that was, or ought to have been, apparent to him. Therefore, he would be entitled to use force that was disproportionate, but not grossly so. He would still have to make a distinction between what was disproportionate and what was grossly disproportionate. It lowers the threshold with regard to the point at which he must make a judgment, but it does not remove that judgment altogether.
The argument is supported on the legal and human rights side, by the incompatibility of the term “grossly disproportionate” with the European convention on human rights. The Joint Committee on Human Rights has previously considered two similar provisions incompatible—[Interruption.]

Nicholas Winterton: We have a Division, and I am going to give myself a little more time. We will resume at 5 o’clock.

Sitting suspended for a Division in the House.

On resuming—

Maria Eagle: When the Committee suspended, I was discussing the compatibility, or I would say incompatibility, with the European convention on human rights of the proposal from hon. and learned Member for Harborough to adopt “grossly disproportionate” as the test. I was just making the point that the Joint Committee on Human Rights has previously considered two very similar provisions to be incompatible with the convention rights. I was speculating on the likelihood that the Joint Committee would do the same in respect of the two new clauses in this group.
The Joint Committee on Human Rights previously objected to a similar provision on grounds relating to the state’s duty to protect the right to life, which encompasses both obligations relating to the circumstances in which the taking of life by the state can be permitted and the need to have adequate law in place to protect against the taking of life by private citizens. The Joint Committee’s reading of a provision allowing force just short of grossly disproportionate to be used would undoubtedly be negative. Were the new clauses to be added to the Bill, it would not be possible for my ministerial colleague, Lord Hunt of Kings Heath, to sign a section 19 certificate on the introduction of the Bill in the other place. As I assured the hon. and learned Gentleman earlier, Ministers consider that declaration seriously before they put their name to it. So that is the concern that we have about the wording that he proposes.
As the Secretary of State for Justice and Lord Chancellor said on Second Reading, we aim to introduce proposals on self-defence, hopefully on Report. The Government’s approach to resolving the issue of public confusion is to make a change that is designed to clarify and reinforce the position on self-defence by building on case law. It will articulate the state’s responsibility to stand by those who were acting in good faith when using force in self-defence. That protection will be extended to all such individuals, whether acting in a professional capacity or not, on public or private land, defending themselves or others, or acting to prevent crime. We believe that it is essential that there be one test and one set of considerations used to assess the appropriateness of all such acts.
I am perfectly happy to continue these discussions, but as the hon. and learned Member for Harborough said, there have been discussions between all parties in respect of this issue. I am happy to continue discussing it until we have to table our amendments, to see if we can come to an agreement. On that basis and in the spirit of trying to come to an agreement together, I hope that the hon. and learned Gentleman will feel able to withdraw his amendment.

Edward Garnier: I am willing to do so because I know that this is an ongoing process, but I think it important that we do not lose sight of this issue. I do not know when the Report stage will be, but between now and then it would be useful if the Government could come up with some proposals in draft that they would be happy to share with the Opposition parties.

Philip Hollobone: I do not know what the correct procedure is for such things, but would it not be courteous of the Government to invite those hon. Members who proposed private Member’s Bills on the matter to be involved in that process?

Edward Garnier: It would be, and they have been. My hon. Friends the Members for Vale of York, for North-West Cambridgeshire (Mr. Vara) and for Newark (Patrick Mercer) were invited on the last occasion that we discussed the matter. The events of the Martin case took place in north-west Norfolk, but it was my hon. Friend the Member for Newark who was, if not the first, one of the first to initiate a Bill on the matter. If my hon. Friend the Member for Kettering wants to be part of this happy gang, I, for one, would be very happy to see him with us. The first thing that we need to do is get on paper an idea of what the Government are proposing. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 276, in clause 127, page 84, line 40, at end insert—
‘( ) sections (Requests to other member States: Northern Ireland) and (Procedure on receipt of certificate by Lord Chancellor: Northern Ireland);
( ) sections (Requests from other member States: Northern Ireland) and (Procedure on receipt of certificate by clerk of petty sessions);’.
No. 277, in clause 127, page 84, line 41, at end insert—
‘( ) paragraph 21(3) and (4) of Schedule 22.’.
No. 220, in clause 127, page 85, line 1, leave out ‘or repeal’ and insert ‘, repeal or revocation’.
No. 375, in clause 127, page 85, line 3, at end insert—
‘(6) The following amendments and repeals also extend to the Channel Islands and the Isle of Man—
(a) the amendments of sections 26 and 70(1) of the Children and Young Persons Act 1969 (c. 54) (transfers between England or Wales and the Channel Islands or Isle of Man) made by Schedule 4, and
(b) the repeals in Part 1 of Schedule 23 relating to those amendments.
(7) In section 7(2) of the Nuclear Material (Offences) Act 1983 (c. 18) (application to Channel Islands, Isle of Man, etc.) the reference to that Act includes a reference to that Act as amended by Schedule 15.
(8) In section 384 of the Armed Forces Act 2006 (c. 52) (extent to Channel Islands, Isle of Man, etc.) any reference to that Act includes a reference to—
(a) that Act as amended by any provision of this Act, and
(b) paragraph 13 of Schedule (Amendments to armed forces legislation).’.—[Maria Eagle.]

Clause 127, as amended, ordered to stand part of the Bill.

Clause 128

Commencement

Amendments made: No. 221, in clause 128, page 85, line 17, at end insert—
‘(h) paragraphs 6(3) and 12 to 15 of Schedule (Hatred on the grounds of sexual orientation) and the repeals in Part 4 of Schedule 23 relating to Part 3A of the Public Order Act 1986 (c. 64).’.
No. 370, in clause 128, page 85, line 17, at end insert—
‘(i) paragraphs 8A to 8E of Schedule 21.’.
No. 222, in clause 128, page 85, line 22, at end insert—
‘(d) paragraphs 2 to 7 of Schedule (Sexual offences: grooming and adoption).’.
No. 223, in clause 128, page 85, line 22, at end insert—
‘(2A) Where any particular provision or provisions of a Schedule come into force in accordance with subsection (1) or (2), the section introducing the Schedule also comes into force in accordance with that subsection so far as relating to the particular provision or provisions.’.
No. 371, in clause 128, page 85, line 28, leave out paragraph (d) and insert—
‘(d) sections 76, 77, (Requests to other member States: Northern Ireland), (Procedure on receipt of certificate by Lord Chancellor: Northern Ireland), 78, 79, (Modification of Magistrates’ Courts Act 1980), (Requests from other member States: Northern Ireland), (Procedure on receipt of certificate by clerk of petty sessions), (Modification of Magistrates’ Courts (Northern Ireland) Order 1981), (Transfer of certificates to central authority for Scotland), 80 and 81 and Schedules (Penalties suitable for enforcement in England and Wales or Northern Ireland) and 16.’.—[Maria Eagle.]

Clause 128, as amended, ordered to stand part of the Bill.

Clause 129 ordered to stand part of the Bill.

New Clause 28

Power of Court of Appeal to disregard developments in the law
‘(1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.
(2) In section 2 (appeals against conviction), after subsection (1B) (as inserted by section 26(2)) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction.”
(3) In section 13 (disposal of appeals against verdict of not guilty by reason of insanity), after subsection (1B) (as inserted by section 26(2A)) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether the verdict is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the verdict.”’.
(4) In section 16 (disposal of appeals against finding of disability), after subsection (1B) (as inserted by section 26(2B)) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether a finding is unsafe the Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the finding.” ’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 29

Meaning of unsafe: Northern Ireland
‘(1) The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended as follows.
(2) In section 2 (grounds for allowing an appeal against conviction) after subsection (1) insert—
“(1A) For the purposes of subsection (1)(a), the conviction is not unsafe if the Court thinks that there is no reasonable doubt about the appellant’s guilt.
(1B) Subsection (1A) does not require the Court to dismiss the appeal if it thinks that it would seriously undermine the proper administration of justice to allow the conviction to stand.”
(3) In section 12 (appeal against finding of not guilty on ground of insanity), after subsection (2) insert—
“(2A) For the purposes of subsection (2)(a), the finding shall not be regarded as unsafe for a reason unrelated to the correctness of the finding of insanity if the Court thinks that there is no reasonable doubt that the accused did the act or made the omission charged.
(2B) Subsection (2A) does not require the Court to dismiss the appeal if it thinks that it would seriously undermine the proper administration of justice to allow the finding to stand.”
(4) In section 13A (appeal against finding of unfitness to be tried), after subsection (3) insert—
“(3A) For the purposes of subsection (3)(a), a finding shall not be regarded as unsafe for a reason unrelated to the correctness of the finding that the accused is unfit to be tried if the Court thinks that there is no reasonable doubt that the accused did the act or made the omission charged.
(3B) Subsection (3A) does not require the Court to dismiss the appeal if it thinks that it would seriously undermine the proper administration of justice to allow the finding to stand.”’.
(5) In section 25 (evidence)—
(a) in subsection (2)(b) after “allowing” insert “or dismissing”, and
(b) in subsection (2)(c) for “which is the subject of the appeal” substitute “which is relevant to the determination of the appeal”.
(6) After section 29 insert—
“Supplementary
29A Evidence given after close of prosecution case
In determining an appeal under this Part, the Court of Appeal shall not disregard any evidence solely on the ground that it was given after the judge at the appellant’s trial wrongly permitted the trial to continue after the close of the evidence for the prosecution.”’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 30

Power of Court of Appeal to disregard developments in the law: Northern Ireland
‘(1) The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended as follows.
(2) In section 2 (appeals against conviction), after subsection (1B) (as inserted by section (Meaning of unsafe: Northern Ireland)(2)) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction.”
(3) In section 12 (appeal against finding of not guilty on ground of insanity), after subsection (2B) (as inserted by section (Meaning of unsafe: Northern Ireland)(3)) insert—
“(2C) In determining for the purposes of subsection (2)(a) whether the finding is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case, disregard any development in the law since the date of the finding.”.
(4) In section 13A (appeal against finding of unfitness to be tried), after subsection (3B) (as inserted by section (Meaning of unsafe: Northern Ireland)(4)) insert—
“(3C) In determining for the purposes of subsection (3)(a) whether a finding is unsafe the Court may, if it thinks it appropriate in all the circumstances of the case, disregard any development in the law since the date of the finding. ” ’.—[Mr. Coaker.]

Brought up, and read the First time.

Motion made, and Question proposed,That the Clause be read a Second time.

Edward Garnier: I have spoken on the clauses before. I just want to clarify, in case anyone thought that we were just letting them through on the nod, that the powers of the Court of Appeal issues were discussed and debated fully some time ago. I hope that no one reading this afternoon’s Hansard would think that we had not dealt with it. We have dealt with it, but last week or the week before.

Nicholas Winterton: The hon. and learned Gentleman has made his point, which will be on the record. I trust that when people look at Hansard they read the whole lot and not just towards the end of a Bill.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 31

Determination of prosecution appeals: Northern Ireland
‘In Article 20 of the Criminal Justice (Northern Ireland) Order 2004 (S.I. 2004/1500) (determination of prosecution appeals by Court of Appeal) for paragraph (5) substitute—
“(5) But the Court of Appeal may not make an order under paragraph (4)(c) in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under paragraph (4)(a) or (b).”’.—[Maria Eagle.]

Brought up, and read the First time.

Maria Eagle: I beg to move, That the clause be read a Second time.
We have not discussed the new clause previously, but we have discussed something remarkably similar to it. It is the Northern Ireland equivalent to clause 27, which applies to England and Wales. The clause will alter the test which the Court of Appeal applies in deciding whether a trial should be resumed or a retrial take place following the successful prosecution appeal against a ruling discontinuing a trial. This is merely the equivalent provision for Northern Ireland.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 32

SFO’s pre-investigation powers in relation to bribery and corruption: foreign officers etc
‘(1) The Criminal Justice Act 1987 (c. 38) is amended as follows.
(2) After section 2 insert—
“2A Director’s pre-investigation powers in relation to bribery and corruption: foreign officers etc
(1) The powers of the Director under section 2 are also exercisable for the purpose of enabling him to determine whether to start an investigation under section 1 in a case where it appears to him that conduct to which this section applies may have taken place.
(2) But—
(a) the power under subsection (2) of section 2 is so exercisable only if it appears to the Director that for the purpose of enabling him to make that determination it is expedient to require any person appearing to him to have relevant information to do as mentioned in that subsection, and
(b) the power under subsection (3) of that section is so exercisable only if it appears to the Director that for that purpose it is expedient to require any person to do as mentioned in that subsection.
(3) Accordingly, where the powers of the Director under section 2 are exercisable in accordance with subsections (1) and (2) above—
(a) the reference in subsection (2) of that section to the person under investigation or any other person whom the Director has reason to believe has relevant information is to be read as a reference to any such person as is mentioned in subsection (2)(a) above,
(b) the reference in subsection (3) of that section to the person under investigation or any other person is to be read as a reference to any such person as is mentioned in subsection (2)(b) above, and
(c) any reference in subsection (2), (3) or (4) of that section to the investigation is to be read as a reference to the making of any such determination as is mentioned in subsection (1) above.
(4) Any reference in section 2(16) to the carrying out of an investigation by the Serious Fraud Office into serious or complex fraud includes a reference to the making of any such determination as is mentioned in subsection (1) above.
(5) This section applies to any conduct which, as a result of section 108 of the Anti-terrorism, Crime and Security Act 2001 (bribery and corruption: foreign officers etc), constitutes a corruption offence (wherever committed).
(6) The following are corruption offences for the purposes of this section—
(a) any common law offence of bribery;
(b) the offences under section 1 of the Public Bodies Corrupt Practices Act 1889 (corruption in office); and
(c) the offences under section 1 of the Prevention of Corruption Act 1906 (corrupt transactions with agents).”
(3) In section 17(3) (provisions of Act extending to Northern Ireland) after “sections 2” insert “, 2A”.
(4) This section extends to England and Wales and Northern Ireland only.’.—[Mr. Hanson.]

Brought up, and read the First time.

David Hanson: I beg to move, That the clause be read a Second time.
The Serious Fraud Office has compulsory powers under section 2 of the Criminal Justice Act 1987 to compel the disclosure of evidence that may be relevant to a current investigation into serious or complex fraud. The new clause would introduce a new section 2A into the 1987 Act, which would allow the director of the Serious Fraud Office to approve the use of section 2 powers at the vetting stage in cases where it appears that there may have been a corruption offence involving a foreign official. In practice, the provision will be useful in allowing the Serious Fraud Office to compel British companies involved to provide evidence about possible corruption abroad, as long as the material is in the United Kingdom.
I hope that the Committee recognises that the Government are committed to tackling the corruption of foreign officials involving British companies. Corruption abroad is particularly hard to investigate. In domestic cases, the Serious Fraud Office often receives information on serious corruption or bribery from the police or from a domestic regulator. Documentary evidence and witnesses are often available in the United Kingdom. The information therefore allows the Serious Fraud Office to go through a vetting process to decide whether the case justifies setting up what will often be a multi-million pound investigation. Once an investigation is set up, the Serious Fraud Office has powers to demand relevant material such as documentary evidence and to interview witnesses under section 2 of the 1987 Act.
Unfortunately, in cases of foreign corruption, it is much more difficult to gather information. Witnesses may be thousands of miles away and reluctant to come forward. Corrupt companies rarely co-operate, and the foreign jurisdiction is often unable or unwilling to provide information. The effect is that cases cannot go beyond the vetting stage because the Serious Fraud Office does not have enough information to decide whether a serious or complex fraud justifies the formal investigation to which it would have to be committed. I do not think—and I am sure that the Committee would share my view—that that is acceptable.
We must deal with foreign corruption as well as corruption at home. Organisations such as the Organisation for Economic Co-operation and Development have expressed concern about the UK’s record on investigating and prosecuting cases involving foreign officials. The new clause would extend the SFO’s compulsory powers to demand relevant material at the vetting stage. Those powers will allow the SFO to demand from companies financial information relating to suspect financial transactions, as long as that information is in the UK, and to free professional witnesses from confidentiality obligations. The proposals will help the Serious Fraud Office to tackle corruption abroad, and I commend them to the Committee.

David Heath: An awful lot could be said about the new clause, but the Committee will be pleased to hear that I do not intend to say much. It should not be possible for investigations to be stopped by anyone so minor as a company official or even an officer of the state. That there is every capacity for princes of a realm or kings to intervene to stop appropriate bribery and corruption investigations in their tracks is only too evident to those who have seen the recent history of this country. It is shameful that we are not better equipped to deal with bribery and corruption in relation to British companies operating abroad.
I say to the Minister that this is a positive move and I support it. However, he knows that his hon. Friend the Member for City of York (Hugh Bayley) introduced a Corruption Bill two years ago. He may know that I, too, proposed a Corruption Bill, which passed through all its stages in the House of Lords but was not given a hearing of any kind in this House in the last Session of Parliament. Both of those Bills would have introduced the changes necessary for us to comply with our international obligations and to correct the deficiencies, which he correctly stated have been pointed out by the OECD.
The Secretary of State for the Department of Environment, Food and Rural Affairs, in his former capacity as Secretary of State for International Development and anti-corruption tsar, as I believe he then was, stated categorically that it was necessary for Britain to adopt such measures and to get our law into shape. However, such measures are still not being introduced. No Bill is anticipated in this Session of Parliament. Is it not time that we did something about our deplorable international record on dealing with bribery and corruption involving British companies?

Edward Garnier: I think that this Government have had more tsars than the Romanovs. I sat on the Joint Committee that scrutinised the draft Corruption Bill, chaired by a retired Law Lord whose name escapes me. That Bill, which was advanced by the Law Commission and adopted by the Home Office and by the Government as a whole, did not go anywhere. In the light of new clause 32, can the Minister tell us where it has gone?

David Hanson: The hon. Member for Somerton and Frome and the hon. and learned Member for Harborough are correct. In March this year, my right hon. Friend the Member for Airdrie and Shotts (John Reid), then Home Secretary, announced the next steps arising from the Government’s consultation on the reform of law on bribery and corruption. As the hon. and learned Gentleman said, the Law Commission was asked to undertake a thorough review of the legislation with a view to a fundamental reform. The commission is expected to produce a consultation paper later in the year and a draft Bill for autumn 2008. We intend to introduce proposals for legislation to reform the law as soon as possible—once the Law Commission has reported.
I realise that the hon. Member for Somerton and Frome and the hon. and learned Member for Harborough may view that as slightly longer grass than they would wish, but I point out that the Bill promoted by my hon. Friend the Member for City of York failed because of an absence of consensus on what might constitute new specific offences. The subject is complex, but we are confident that the Law Commission is taking on board the views of a wide cross-section of interested parties to produce what I hope will be a simpler and much more workable Bill.
In the interim, we propose to introduce a specific measure upon which we have previously consulted, namely extending the SFO’s investigatory powers to the vetting stage in any cases involving allegations of bribery or corruption of overseas officials, officers or their agents. I hope that hon. Members accept it as a positive step and understand that there will be a need for wider discussion of the draft Bill following the commission’s report in the new year. I commend the new clause to the Committee.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 33

Special rules relating to providers of information society services
‘Schedule (Special rules relating to providers of information society services) makes special provision in connection with the operation of section 64 in relation to persons providing information society services within the meaning of that Schedule.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 34

Hatred on the grounds of sexual orientation
‘Schedule (Hatred on the grounds of sexual orientation)—
(a) amends Part 3A of the Public Order Act 1986 (c. 64) (hatred against persons on religious grounds) to make provision about hatred against a group of persons defined by reference to sexual orientation, and
(b) makes minor amendments of that Part.’.—[Maria Eagle.]

Brought up, and read the First time.

Motion made, and Question put, That the clause be read a Second time:—

The Committee divided: Ayes 11, Noes 1.

Question accordingly agreed to.

Clause read a Second time, and added to the Bill.

New Clause 35

Sexual offences committed outside the United Kingdom
‘(1) For section 72 of the Sexual Offences Act 2003 (c. 42) substitute—
“72 Offences outside the United Kingdom
(1) If—
(a) a United Kingdom national does an act in a country outside the United Kingdom, and
(b) the act, if done in England and Wales or Northern Ireland, would constitute a sexual offence to which this section applies,
the United Kingdom national is guilty in that part of the United Kingdom of that sexual offence.
(2) If—
(a) a United Kingdom resident does an act in a country outside the United Kingdom,
(b) the act constitutes an offence under the law in force in that country, and
(c) the act, if done in England and Wales or Northern Ireland, would constitute a sexual offence to which this section applies,
the United Kingdom resident is guilty in that part of the United Kingdom of that sexual offence.
(3) If—
(a) a person does an act in a country outside the United Kingdom at a time when the person was not a United Kingdom national or a United Kingdom resident,
(b) the act constituted an offence under the law in force in that country,
(c) the act, if done in England and Wales or Northern Ireland, would have constituted a sexual offence to which this section applies, and
(d) the person meets the residence or nationality condition at the relevant time,
proceedings may be brought against the person in that part of the United Kingdom for that sexual offence as if the person had done the act there.
(4) The person meets the residence or nationality condition at the relevant time if the person is a United Kingdom national or a United Kingdom resident at the time when the proceedings are brought.
(5) An act punishable under the law in force in any country constitutes an offence under that law for the purposes of subsections (2) and (3) however it is described in that law.
(6) The condition in subsection (2)(b) or (3)(b) is to be taken to be met unless, not later than rules of court may provide, the defendant serves on the prosecution a notice—
(a) stating that, on the facts as alleged with respect to the act in question, the condition is not in the defendant’s opinion met,
(b) showing the grounds for that opinion, and
(c) requiring the prosecution to prove that it is met.
(7) But the court, if it thinks fit, may permit the defendant to require the prosecution to prove that the condition is met without service of a notice under subsection (6).
(8) In the Crown Court the question whether the condition is met is to be decided by the judge alone.
(9) In this section—
“country” includes territory;
“United Kingdom national” means an individual who is—
(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen;
(b) a person who under the British Nationality Act 1981 is a British subject; or
(c) a British protected person within the meaning of that Act;
“United Kingdom resident” means an individual who is resident in the United Kingdom.
(10) Schedule 2 lists the sexual offences to which this section applies.”
(2) Schedule 2 to that Act (list of sexual offences to which section 72 applies) is amended as follows.
(3) In paragraph 1 (offences under the law of England and Wales)—
(a) for paragraphs (a) and (b) substitute—
“(a) an offence under any of sections 5 to 19, 25 and 26 and 47 to 50;
(b) an offence under any of sections 1 to 4, 30 to 41 and 61 where the victim of the offence was under 18 at the time of the offence;”;
(b) in paragraph (c), for “16” substitute “18”; and
(c) in paragraph (d), omit “in relation to a photograph or pseudo-photograph showing a child under 16”.
(4) In paragraph 2 (offences under the law of Northern Ireland)—
(a) in sub-paragraph (1)(c)(iv), for “17” substitute “18”; and
(b) in sub-paragraph (2), for “17” substitute “18”.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 36

Sexual offences: grooming and adoption
‘Schedule (Sexual offences: grooming and adoption)—
(a) amends section 15 of the Sexual Offences Act 2003 (c. 42) (meeting a child following sexual grooming etc),
(b) amends that Act in relation to adoption, and
(c) amends the Adoption Act 1976 (c. 36) in relation to offences under sections 64 and 65 of the Sexual Offences Act 2003 (c. 42).’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 37

Review of violent offender orders in respect of young offenders
‘(1) This section applies where a violent offender order has been made in respect of an offender who was under 17 at the time when the order was made (“the young offender”).
(2) If—
(a) the young offender will be under 18 at the end of a review period (see subsection (2)), and
(b) the young offender will be subject to the violent offender order at the end of that period,
the appropriate chief officer of police must before the end of that period carry out a review of the operation of the order.
But this subsection ceases to apply if the order is discharged under section 87 before the end of that period.
(3) The “review periods” are—
(a) the period of 12 months beginning with—
(i) the day on which the order was made, or
(ii) if one or more supplemental orders were made during that period, the date on which the supplemental order (or the last supplemental order) was made;
(b) a period of 12 months beginning with—
(i) the day after the end of the previous review period, or
(ii) if one or more supplemental orders were made during that period, the date on which the supplemental order (or the last supplemental order) was made.
(4) A review under this section must include consideration of—
(a) the extent to which the young offender has complied with the violent offender order;
(b) the adequacy of any support available to the young offender to help the young offender comply with it;
(c) any matters relevant to the question whether an application should be made under section 87 for the violent offender order to be varied, renewed or discharged.
(5) A chief officer of police carrying out a review under this section may invite any person to participate in the review, but must have regard to any guidance issued by the Secretary of State when considering which persons to invite.
(6) Those carrying out or participating in a review under this section must have regard to any guidance issued by the Secretary of State when considering—
(a) how the review should be carried out;
(b) what particular matters should be dealt with by the review;
(c) which persons should be sent a copy of the findings of the review or extracts from or a summary of those findings;
(d) what action (if any) it would be appropriate to take in consequence of those findings.
(7) In this section—
“the appropriate chief officer of police” means the chief officer of police of the police force maintained for the police area in which the young offender resides or appears to reside;
“supplemental order”, in relation to a violent offender order, means an order under section 87 varying or renewing the violent offender order.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 38

Disclosure of information about convictions etc of child sex offenders to members of the public
‘(1) After section 327 of the Criminal Justice Act 2003 (c. 44) insert—
“327A Disclosure of information about convictions etc of child sex offenders to members of the public
(1) The responsible authority for each area must, in the course of discharging its functions under arrangements established by it under section 325, consider whether to disclose information in its possession about the relevant previous convictions of any child sex offender managed by it to any particular member of the public.
(2) In the case mentioned in subsection (3) there is a presumption that the responsible authority should disclose information in its possession about the relevant previous convictions of the offender to the particular member of the public.
(3) The case is where the responsible authority for the area has reasonable cause to believe that—
(a) a child sex offender managed by it poses a risk in that or any other area of causing harm to children generally or any child, and
(b) the disclosure of information about the relevant previous convictions of the offender to the particular member of the public is necessary for the purpose of protecting children generally or any child from harm caused by the offender.
(4) The presumption under subsection (2) arises—
(a) whether or not the person to whom the information is disclosed requests the disclosure, and
(b) whether or not the responsible authority making the disclosure has reasonable cause to believe that the risk is posed in relation to a member of that person’s family.
(5) Where the responsible authority makes a disclosure under this section—
(a) it may disclose such information about the relevant previous convictions of the offender as it considers appropriate to disclose to the member of the public concerned, and
(b) it may impose conditions for preventing the member of the public concerned from disclosing the information to any other person.
(6) Any disclosure under this section must be made as soon as is reasonably practicable having regard to all the circumstances.
(7) The responsible authority for each area must compile and maintain a record about the decisions it makes in relation to the discharge of its functions under this section.
(8) The record must include the following information—
(a) the reasons for making a decision to disclose information under this section,
(b) the reasons for making a decision not to disclose information under this section, and
(c) the information which is disclosed under this section, any conditions imposed in relation to its further disclosure and the name and address of the person to whom it is disclosed.
(9) Nothing in this section requires or authorises the making of a disclosure which contravenes the Data Protection Act 1998.
(10) This section is not to be taken as affecting any power of any person to disclose any information about a child sex offender.
327B Section 327A: interpretation
(1) This section applies for the purposes of section 327A.
(2) “Child” means a person under 18.
(3) “Child sex offence” means an offence listed in Schedule 34A, whenever committed.
(4) “Child sex offender” means any person who—
(a) has been convicted of such an offence,
(b) has been found not guilty of such an offence by reason of insanity,
(c) has been found to be under a disability and to have done the act charged against the person in respect of such an offence, or
(d) has been cautioned in respect of such an offence.
(5) In relation to a responsible authority, references to information about the relevant previous convictions of a child sex offender are references to information about—
(a) convictions, findings and cautions mentioned in subsection (4)(a) to (d) which relate to the offender, and
(b) anything under the law of any country or territory outside England and Wales which in the opinion of the responsible authority corresponds to any conviction, finding or caution within paragraph (a) (however described).
(6) References to harm caused by a child sex offender are references to physical or psychological harm caused by the offender committing any offence listed in any paragraph of Schedule 34A other than paragraphs 1 to 6 (offences under provisions repealed by Sexual Offences Act 2003).
(7) A responsible authority for any area manages a child sex offender if the offender is a person who poses risks in that area which fall to be managed by the authority under the arrangements established by it under section 325.
(8) For the purposes of this section the provisions of section 4 of, and paragraph 3 of Schedule 2 to, the Rehabilitation of Offenders Act 1974 (protection for spent convictions and cautions) are to be disregarded.
(9) In this section “cautioned”, in relation to any person and any offence, means—
(a) cautioned after the person has admitted the offence, or
(b) reprimanded or warned within the meaning given by section 65 of the Crime and Disorder Act 1998.
(10) Section 135(1), (2)(a) and (c) and (3) of the Sexual Offences Act 2003 (mentally disordered offenders) apply for the purposes of this section as they apply for the purposes of Part 2 of that Act.”
(2) After Schedule 34 to that Act insert the Schedule 34A set out in Schedule (Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”) to this Act.’.—[Maria Eagle.]

Brought up, and read the First time.

Motion made and Question put, That the clause be read a Second time:—

The Committee divided: Ayes 10, Noes 4.

Question accordingly agreed to.

Clause read a Second time ,  and added to the Bill.

New Clause 39

Sexual offences prevention orders: relevant sexual offences
‘(1) In section 106 of the Sexual Offences Act 2003 (c. 42) (supplemental provisions about sexual offences prevention orders), at the end insert—
“(13) Subsection (14) applies for the purposes of section 104 and this section in their application in relation to England and Wales or Northern Ireland.
(14) In construing any reference to an offence listed in Schedule 3, any condition subject to which an offence is so listed that relates—
(a) to the way in which the defendant is dealt with in respect of an offence so listed or a relevant finding (as defined by section 132(9)), or
(b) to the age of any person,
is to be disregarded.”
(2) This section extends to England and Wales and Northern Ireland only.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 40

Notification requirements: prescribed information
‘(1) In section 83 of the Sexual Offences Act 2003 (c. 42) (notification requirements: initial notification)—
(a) at the end of subsection (5) insert—
“(h) any prescribed information.”; and
(b) after that subsection insert—
“(5A) In subsection (5)(h) “prescribed” means prescribed by regulations made by the Secretary of State.”
(2) Section 84 of that Act (notification requirements: changes) is amended as follows.
(3) In subsection (1)—
(a) after “1997,” in paragraph (c) insert—
“(ca) any prescribed change of circumstances,”; and
(b) after “the address of those premises” insert “, the prescribed details”.
(4) In subsection (2) after “home address” insert “or the prescribed change of circumstances”.
(5) After subsection (5) insert—
“(5A) In this section—
(a) “prescribed change of circumstances” means any change—
(i) occurring in relation to any matter in respect of which information is required to be notified by virtue of section 83(5)(h), and
(ii) of a description prescribed by regulations made by the Secretary of State;
(b) “the prescribed details”, in relation to a prescribed change of circumstances, means such details of the change as may be so prescribed.”
(6) This section extends to England and Wales and Northern Ireland only.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 41

Persistent sales of tobacco to persons under 18
‘(1) The Children and Young Persons Act 1933 (c. 12) is amended as follows.
(2) After section 12 insert—

“Persistent sales of tobacco to persons under 18
12A Restricted premises orders
(1) This section applies where a person (“the offender”) is convicted of a tobacco offence (“the relevant offence”).
(2) The person who brought the proceedings for the relevant offence may by complaint to a magistrates’ court apply for a restricted premises order to be made in respect of the premises in relation to which that offence was committed (“the relevant premises”).
(3) A restricted premises order is an order prohibiting the sale on the premises to which it relates of any tobacco or cigarette papers to any person.
(4) The prohibition applies to sales whether made—
(a) by the offender or any other person, or
(b) by means of any machine kept on the premises or any other means.
(5) The order has effect for the period specified in the order, but that period may not exceed one year.
(6) The applicant must, after making reasonable enquiries, give notice of the application to every person appearing to the applicant to be a person affected by it.
(7) The court may make the order if (and only if) it is satisfied that—
(a) on at least 2 occasions within the period of 2 years ending with the date on which the relevant offence was committed the offender has committed other tobacco offences in relation to the relevant premises, and
(b) the applicant has complied with subsection (6).
(8) Persons affected by the application may make representations to the court as to why the order should not be made.
(9) If—
(a) a person affected by an application for a restricted premises order was not given notice under subsection (6), and
(b) consequently the person had no opportunity to make representations to the court as to why the order should not be made,
the person may by complaint apply to the court for an order varying or discharging it.
(10) On an application under subsection (9) the court may, after hearing—
(a) that person, and
(b) the applicant for the restricted premises order,
make such order varying or discharging the restricted premises order as it considers appropriate.
(11) For the purposes of this section the persons affected by an application for a restricted premises order in respect of any premises are—
(a) the occupier of the premises, and
(b) any other person who has an interest in the premises.
12B Restricted sale orders
(1) This section applies where a person (“the offender”) is convicted of a tobacco offence (“the relevant offence”).
(2) The person who brought the proceedings for the relevant offence may by complaint to a magistrates’ court apply for a restricted sale order to be made in respect of the offender.
(3) A restricted sale order is an order prohibiting the person to whom it relates—
(a) from selling any tobacco or cigarette papers to any person,
(b) from having any management functions in respect of any premises in so far as those functions relate to the sale on the premises of tobacco or cigarette papers to any person,
(c) from keeping any cigarette machine on any premises for the purpose of selling tobacco or permitting any cigarette machine to be kept on any premises by any other person for that purpose, and
(d) from having any management functions in respect of any premises in so far as those functions relate to any cigarette machine kept on the premises for the purpose of selling tobacco.
(4) The order has effect for the period specified in the order, but that period may not exceed one year.
(5) The court may make the order if (and only if) it is satisfied that on at least 2 occasions within the period of 2 years ending with the date on which the relevant offence was committed the offender has committed other tobacco offences.
(6) In this section any reference to a cigarette machine is a reference to an automatic machine for the sale of tobacco.
12C Enforcement
(1) If—
(a) a person sells on any premises any tobacco or cigarette papers in contravention of a restricted premises order, and
(b) the person knew, or ought reasonably to have known, that the sale was in contravention of the order,
the person commits an offence.
(2) If a person fails to comply with a restricted sale order, the person commits an offence.
(3) It is a defence for a person charged with an offence under subsection (2) to prove that the person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
(4) A person guilty of an offence under this section is liable, on summary conviction, to a fine not exceeding £20,000.
(5) A restricted premises order is a local land charge and in respect of that charge the applicant for the order is the originating authority for the purposes of the Local Land Charges Act 1975.
12D Interpretation
(1) In sections 12A and 12B a “tobacco offence” means—
(a) an offence committed under section 7(1) on any premises (which are accordingly “the premises in relation to which the offence is committed”), or
(b) an offence committed under section 7(2) in respect of an order relating to any machine kept on any premises (which are accordingly “the premises in relation to which the offence is committed”).
(2) In sections 12A to 12C the expressions “tobacco” and “cigarette” have the same meaning as in section 7.
(3) In sections 12A and 12B “notice” means notice in writing.”
(3) In section 102(1) (appeals to the Crown Court), after paragraph (e) insert—
“(f) in the case of a restricted premises order under section 12A or a restricted sale order under section 12B, by any person aggrieved.”’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 42

Requests to other member States: Northern Ireland
‘(1) A designated officer of the Northern Ireland Court Service may issue a certificate requesting enforcement under the Framework Decision on financial penalties where—
(a) a person is required to pay a financial penalty,
(b) the penalty is not paid in full within the time allowed for payment,
(c) there is no appeal outstanding in relation to the penalty, and
(d) it appears to the designated officer that the person is normally resident in, or has property or income in, a member State other than the United Kingdom.
(2) For the purposes of subsection (1)(c), there is no appeal outstanding in relation to a financial penalty if—
(a) no appeal has been brought in relation to the imposition of the financial penalty within the time allowed for making such an appeal, or
(b) such an appeal has been brought but the proceedings on appeal have been concluded.
(3) Where the person required to pay the financial penalty is a body corporate, subsection (1)(d) applies as if the reference to the person being normally resident in a member State other than the United Kingdom were a reference to the person having its registered office in a member State other than the United Kingdom.
(4) In this section—
(a) “designated officer of the Northern Ireland Court Service” means a member of the staff of the Northern Ireland Court Service designated by the Lord Chancellor for the purposes of this section;
(b) “financial penalty” means—
(i) a fine imposed by a court in Northern Ireland on the person’s conviction of an offence;
(ii) any sum payable under a compensation order (within the meaning of article 14 of the Criminal Justice (Northern Ireland) Order 1994 (S.I.1994/2795 (N.I.15));
(iii) any sum payable under an order made under section 2(1), 4(1) or 5(1) of the Costs in Criminal Cases Act (Northern Ireland) 1968 (N.I. 10) or section 41(1) of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47);
(iv) any fine or other sum mentioned in section 76(5)(a) to (d), or any fine imposed by a court in Scotland, which is enforceable in a petty sessions district in Northern Ireland by virtue of Article 96 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.26));
(v) any other financial penalty, within the meaning of the Framework Decision on financial penalties, specified in an order made by the Lord Chancellor.’.—[Maria Eagle.]

Brought up, read the First and Second time and added to the Bill.

New Clause 43

Procedure on receipt of certificate by Lord Chancellor: Northern Ireland
‘(1) This section applies where a designated officer has issued a certificate under section (Requests to other member States: Northern Ireland)(1).
(2) The designated officer must give the Lord Chancellor the certificate, together with a certified copy of the decision requiring payment of the financial penalty.
(3) On receipt of the documents mentioned in subsection (2), the Lord Chancellor must give those documents to the central authority or competent authority of the member State in which the person required to pay the penalty appears to be normally resident or (as the case may be) to have property or income.
(4) Where a certified copy of the decision is given to the central authority or competent authority of a member State in accordance with subsection (3), no further steps to enforce the decision may be taken in Northern Ireland except in accordance with provision made by order by the Lord Chancellor.
(5) Where the person required to pay the financial penalty is a body corporate, subsection (3) applies as if the reference to the member State in which the person appears to be normally resident were a reference to the member State in which the person appears to have its registered office.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 44

Modification of Magistrates’ Courts Act 1980
‘(1) Section 90 of the Magistrates’ Courts Act 1980 (c. 43) is modified as follows in its application to financial penalties by virtue of section 79(7) above.
(2) Subsection (1) applies as if for the words from “he is residing” to the end of that subsection there were substituted “he is residing, or has property or a source of income, in any petty sessions district in Northern Ireland—
(a) the court or the fines officer (as the case may be) may order that payment of the sum shall be enforceable in that petty sessions district, and
(b) if such an order is made, the court or the fines officer must notify the Lord Chancellor.” ’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 45

Requests from other member States: Northern Ireland
‘(1) This section applies where—
(a) the competent authority or central authority of a member State other than the United Kingdom gives the Lord Chancellor—
(i) a certificate requesting enforcement under the Framework Decision on financial penalties, and
(ii) the decision, or a certified copy of the decision, requiring payment of the financial penalty to which the certificate relates, and
(b) the financial penalty is suitable for enforcement in Northern Ireland (see section 80(A1)).
(2) If the certificate states that the person required to pay the financial penalty is normally resident in Northern Ireland, the Lord Chancellor must give the documents mentioned in subsection (1)(a) to the clerk of petty sessions for the petty sessions district in which it appears that the person is normally resident.
(3) Otherwise, the Lord Chancellor must give the documents mentioned in subsection (1)(a) to the clerk of petty sessions for such petty sessions district as appears appropriate.
(4) Where the Lord Chancellor acts under subsection (2) or (3), the Lord Chancellor must also give the clerk of petty sessions a notice—
(a) stating whether the Lord Chancellor thinks that any of the grounds for refusal apply (see section 80(1)), and
(b) giving reasons for that opinion.
(5) Where the person required to pay the financial penalty is a body corporate, subsection (2) applies as if the reference to the petty sessions district in which it appears that the person is normally resident were a reference to the petty sessions district in which it appears that the person has its registered office.
(6) Where—
(a) the competent authority or central authority of a member State other than the United Kingdom gives the central authority for Scotland the documents mentioned in subsection (1), and
(b) without taking any action to enforce the financial penalty in Scotland, the central authority for Scotland gives the documents to the Lord Chancellor,
this section applies as if the competent authority or central authority gave the documents to the Lord Chancellor.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 46

Procedure on receipt of certificate by clerk of petty sessions
‘(1) This section applies where the Lord Chancellor gives the clerk of petty sessions for a petty sessions district—
(a) a certificate requesting enforcement under the Framework Decision on financial penalties,
(b) the decision, or a certified copy of the decision, requiring payment of the financial penalty to which the certificate relates, and
(c) a notice under section (Requests from other member States: Northern Ireland)(4).
(2) The clerk must refer the matter to a magistrates’ court acting for the petty sessions district.
(3) The magistrates’ court must decide whether it is satisfied that any of the grounds for refusal apply (see section 80(1)).
(4) The clerk must inform the Lord Chancellor of the decision of the magistrates’ court.
(5) Subsection (6) applies unless the magistrates’ court is satisfied that one or more of the grounds for refusal apply.
(6) Part 9 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I.26)), and any instrument made under that Part, apply in relation to the financial penalty as if it were a sum adjudged to be paid by a conviction of the magistrates’ court on the date when the court made the decision mentioned in subsection (4).
(7) If the certificate requesting enforcement under the Framework Decision on financial penalties states that part of the financial penalty has been paid, the reference in subsection (6) to the financial penalty is to be read as a reference to such part of the penalty as remains unpaid.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 47

Modification of Magistrates’ Courts (Northern Ireland) Order 1981
‘(1) Part 9 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I 1981/1675 (N.I. 26) is modified as follows in its application to financial penalties by virtue of section (Procedure on receipt of certificate by clerk of petty sessions)(6) above.
(2) Article 92 applies in relation to any financial penalty for an amount exceeding £20,000 as if for paragraph (5) there were substituted—
“(5) The period for which a person may be committed to prison under this Article in default of payment or levy of any sum or part of such sum shall not exceed the maximum period which the Crown Court could have fixed under section 35(1)(c) of the Criminal Justice Act (Northern Ireland) 1945 had the financial penalty been a fine imposed by the Crown Court.”
(3) For the purpose of determining whether a financial penalty specified in a currency other than sterling is for an amount exceeding £20,000, the exchange rate prevailing on the relevant date must be used.
(4) In subsection (3), the “relevant date” means the date on which the decision imposing the financial penalty was made.
(5) Article 95 applies as if for the words from “he is residing” in paragraph (1) to the end of that paragraph there were substituted “he is residing, or has property or a source of income, in any local justice area in England and Wales—
(a) the court may order that payment of the sum shall be enforceable in that local justice area, and
(b) if such an order is made, the court must notify the Lord Chancellor.” ’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 48

Transfer of certificates to central authority for Scotland
‘(1) This section applies where—
(a) the competent authority or central authority of a member State other than the United Kingdom gives the Lord Chancellor—
(i) a certificate requesting enforcement under the Framework Decision on financial penalties, and
(ii) the decision, or a certified copy of the decision, requiring payment of the financial penalty to which the certificate relates, but
(b) the Lord Chancellor is not required by section 78 or (Requests from other member States: Northern Ireland) to give the documents to a designated officer for a local justice area in England and Wales or to a clerk of petty sessions for a petty sessions district in Northern Ireland.
(2) If the certificate states that the person is normally resident or has property or a source of income in Scotland, the Lord Chancellor must give the documents to the central authority for Scotland.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 60

Contents of an accused’s defence statement
‘In section 6A(1) of the Criminal Procedure and Investigations Act 1996 (c. 25) (contents of defence statement), after “prosecution,” in paragraph (c) insert—
“(ca) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence,”.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 61

Appointment etc. of Northern Ireland Commissioner for Prison Complaints
‘(1) There shall be a Commissioner, to be known as the Northern Ireland Commissioner for Prison Complaints (referred to in this Part as “the Commissioner”).
(2) The main functions of the Commissioner are—
(a) dealing with eligible complaints (see sections (Northern Ireland Commissioner for Prison Complaints: eligible complaints: general) to (Northern Ireland Commissioner for Prison Complaints: recommendations by Commissioner);
(b) investigating deaths falling within the deaths remit (see sections (Northern Ireland Commissioner for Prison Complaints: investigations of deaths) and (Northern Ireland Commissioner for Prison Complaints: reports on the outcome of a death investigation));
(c) carrying out other investigations at the request of the Secretary of State (see sections (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State) and (Northern Ireland Commissioner for Prison Complaints: reports on the outcome of an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State)).
(3) The functions of the Commissioner are performed on behalf of the Crown.
(4) The Secretary of State shall pay such sums towards the expenses of the Commissioner as the Secretary of State may determine.
(5) Schedule (The Northern Ireland Commissioner for Prison Complaints) makes further provision about the Commissioner.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 62

Northern Ireland Commissioner for Prison Complaints: eligible complaints: general
‘(1) A complaint is eligible for the purposes of this Part if—
(a) it is about a matter within the complaints remit;
(b) the matter relates to events which occurred on or after 2 May 2005;
(c) it is not ineligible by virtue of section (Northern Ireland Commissioner for Prison Complaints: eligible complaints: specific requirements applicable to all complaints); and
(d) it is made to the Commissioner by a person entitled to make it.
(2) A matter is within the complaints remit if it is of a description specified in Part 1 of Schedule (The Northern Ireland Commissioner for Prison Complaints: complaints remit) and is not an excluded matter.
(3) In subsection (2) “excluded matter” means—
(a) a matter specified under subsection (4);
(b) a matter to which subsection (5) applies; or
(c) a health care matter (see subsection (7)).
(4) The Secretary of State may by order specify matters that are to be excluded matters for the purposes of subsection (2).
The matters so specified may (without prejudice to the generality of the power) include complaints relating to events occurring at any description of applicable premises specified in the order.
(5) This subsection applies to any matter which has been determined—
(a) by a court (whether at a trial or otherwise);
(b) by a tribunal specified in Schedule 1 to the Tribunals and Inquiries Act 1992 (c. 53);
(c) by the Secretary of State or the Life Sentence Review Commissioners under the Life Sentences (Northern Ireland) Order 2001 (S.I. 2001/2564 (N.I.2));
(d) by the Secretary of State or the Sentence Review Commissioners under the Northern Ireland (Sentences) Act 1998 (c. 35);
(e) by the Secretary of State under the Northern Ireland (Remission of Sentences) Act 1995 (c. 47).
(6) Nothing in subsection (5) affects the eligibility of a complaint about the conduct of a person in connection with the provision of a report for—
(a) a court or tribunal, or
(b) the Secretary of State, the Life Sentence Review Commissioners or the Sentence Review Commissioners in connection with their functions under any enactment mentioned in subsection (5)(c) to (e).
(7) A health care matter is a matter relating to—
(a) action taken in relation to general health services by a person mentioned in Article 8(3)(a) to (d) of the Commissioner for Complaints (Northern Ireland) Order 1996 (S.I. 1996/1297 (N.I.7)), or
(b) action taken in relation to a service provided under arrangements with a health and social services body or a general health services provider by a person mentioned in Article 8A(3)(a) to (d) of that Order.
(8) In subsection (7), “action”, “general health services”, “general health services provider” and “health and social services body” have the same meaning as in that Order.
(9) It is for the Commissioner to determine procedures for the making of complaints (but they must not preclude the making of oral complaints).
(10) A person is entitled to make a complaint if that person—
(a) is the relevant person in relation to the complaint; or
(b) where the relevant person is dead or unable to act, appears to the Commissioner to be an appropriate person to make the complaint.
(11) In this Part, “the relevant person”, in relation to a complaint about a matter within the complaints remit, is the person mentioned in the relevant paragraph of Schedule (The Northern Ireland Commissioner for Prison Complaints: complaints remit) as having been affected by that matter.
(12) For the purpose of determining whether a part of a complaint is eligible for the purposes of this Part, any reference in this section (apart from subsection (9)) to a complaint may be read as including a reference to a part of a complaint.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 63

Northern Ireland Commissioner for Prison Complaints: eligible complaints: specific requirements applicable to all complaints
‘(1) Subject to subsection (3), a complaint is ineligible by virtue of this section if the Commissioner is satisfied that any of the requirements specified in subsection (2) has not been met.
(2) Those requirements are—
(a) that a period of no more than one year has passed since the complainant first became aware of the matters giving rise to the substance of the complaint;
(b) that the substance of the complaint has been communicated to the responsible authority and it has had a reasonable opportunity to deal with it; and
(c) where the responsible authority has responded to the substance of the complaint following such a communication (whether by rejecting it or by addressing it in some other way) that a period of no more than three months has passed since it did so.
(3) But the Commissioner may—
(a) waive any requirement specified in subsection (2), or
(b) extend any period so specified,
if satisfied that there is good reason why that requirement or period should be waived or extended in relation to the complaint.
(4) In this section “the responsible authority”, in relation to a complaint, means the controlling authority appearing to the Commissioner to have the most direct responsibility for the matters covered by the complaint.
(5) For the purpose of determining whether a part of a complaint is ineligible by virtue of this section, any reference in this section to a complaint may be read as including a reference to a part of a complaint.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 64

Northern Ireland Commissioner for Prison Complaints: treatment of complaints
‘(1) This section applies where a complaint is made to the Commissioner.
(2) The Commissioner shall—
(a) consider the eligibility of the complaint, and
(b) unless it is rejected as being ineligible, take appropriate action to deal with the complaint.
The duty under paragraph (b) is subject to the following provisions of this section.
(3) The action which may be taken by the Commissioner to deal with the complaint is—
(a) investigating the complaint, or
(b) taking, or facilitating the taking by another person of, any other action (such as mediation or conciliation) which the Commissioner considers may result in the resolution of the complaint,
or any combination of the actions mentioned in paragraph (a) and (b).
(4) The Commissioner shall reject the whole or any part of the complaint if—
(a) when considering the eligibility of the complaint under subsection (2), or
(b) at any time before the complaint has been fully dealt with,
the Commissioner decides that the complaint or part of the complaint is ineligible.
(5) The Commissioner need not decide that the whole or any part of the complaint is ineligible so long as the Commissioner considers that it is or might be eligible.
(6) The Commissioner may (for any reason not relating to eligibility) decline to take, defer or stop taking action to deal with the whole or any part of the complaint.
(7) Where the Commissioner—
(a) rejects part of a complaint, or
(b) declines to take or stops taking action to deal with part of a complaint,
the rest of the complaint shall be dealt with subsequently as if it were the complaint made by the complainant.
(8) Where—
(a) the whole or any part of a complaint has been rejected, or
(b) a power under subsection (7)(b) has been exercised,
the Commissioner may decide to re-open (and take action or further action under subsection (3) to deal with) the whole or any part of the complaint.
(9) But a complaint or part of a complaint may not be re-opened unless the Commissioner considers that it is or might be eligible.
(10) Where part of a complaint is re-opened it may be dealt with subsequently as if it were a separate complaint made by the complainant.
(11) If the Commissioner decides—
(a) to reject the whole or any part of the complaint,
(b) to take any step mentioned in subsection (6) or (8),
the Commissioner shall notify the complainant (with a brief statement of the reasons for the decision) and may notify such other persons as the Commissioner thinks fit.
(12) Notification under subsection (11) may be given orally.
(13) If the complainant has died or is unable to act, the reference in subsection (11) to the complainant is to be read as a reference to the person who appears to the Commissioner to be the most appropriate person to receive the notification.
(14) Subject to the provisions of this section, it is for the Commissioner to determine the procedures applicable to anything which is to be done in relation to the complaint.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 65

Northern Ireland Commissioner for Prison Complaints: report on the outcome of an investigation
‘(1) If a complaint has been investigated or otherwise dealt with, the Commissioner—
(a) shall make a report on the outcome of the investigation to the complainant; and
(b) may make a report on that outcome to any other person.
(2) The Commissioner may—
(a) make a report orally;
(b) make different reports to different persons;
(c) show any person a draft of the whole or any part of a report;
(d) publish the whole or any part of a report.
(3) But the Commissioner shall not under subsection (2)(d)—
(a) identify the complainant without the complainant’s consent;
(b) if the complainant is not the relevant person in relation to the complaint, identify the relevant person without the consent of the complainant;
(c) identify any individual from whom any information in the report was received; or
(d) except where the Commissioner thinks it necessary in the public interest, identify any individual to whom any information in the report relates.
(4) Subsection (3)(c) and (d) do not apply in relation to the complainant or (if different) the relevant person.
(5) If the complainant has died or is unable to act—
(a) the report required under subsection (1)(a) shall be made to the person who appears to the Commissioner to be the most appropriate person to receive it; and
(b) the consent required by subsection (3)(b) may be given by any person appearing to the Commissioner to be an appropriate person to give that consent.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 66

Northern Ireland Commissioner for Prison Complaints: recommendations by Commissioner
‘(1) The Commissioner may make recommendations to a controlling authority about any matter arising from a complaint which is or has been the subject of investigation by the Commissioner.
(2) The authority must, within the period of 28 days commencing with the day on which it receives the recommendations, respond in writing to the Commissioner setting out (with reasons) what it proposes to do about them.
(3) The Commissioner may report on that response to such persons as the Commissioner may think fit.
(4) Subsections (2) to (5) of section (Northern Ireland Commissioner for Prison Complaints: report on the outcome of an investigation) apply in relation to reports under subsection (3) above as they apply in relation to reports required by that section.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 67

Northern Ireland Commissioner for Prison Complaints: investigation of deaths
‘(1) The Commissioner shall carry out an investigation of every death falling within the deaths remit.
(2) A death falls within the deaths remit if it is of a description specified in Schedule (Northern Ireland Commissioner for Prison Complaints: deaths remit).
(3) In carrying out the investigation, the Commissioner must aim—
(a) to establish the circumstances surrounding the death; and
(b) if the Commissioner considers it would be helpful to do so, to identify steps that should be taken for the purpose of eliminating or reducing the risk of deaths occurring under the same or similar circumstances.
(4) Subject to that, it is for the Commissioner to determine the scope of, and the procedure to be applied to, the investigation.
(5) The Commissioner may defer the whole or any part of the investigation at the request of a person who —
(a) is conducting a criminal investigation, and
(b) considers that that investigation might be adversely affected by the Commissioner’s investigation.
(6) In subsection (5) “criminal investigation” means an investigation conducted by police officers or other persons with a view to ascertaining whether an offence has been committed or whether a person should be charged with an offence.
(7) The Commissioner may at any time reopen the investigation of—
(a) a death previously investigated under this section; or
(b) a death previously investigated by the Prisoner Ombudsman for Northern Ireland that would, if it occurred after the commencement of this section, fall within the deaths remit;
and a re-opened investigation shall be treated for the purposes of this Part as a separate investigation under this section.
(8) The Commissioner may make recommendations to a controlling authority about any matter arising from an investigation.
(9) Such recommendations may be made during the investigation or after its conclusion.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 68

Northern Ireland Commissioner for Prison Complaints: reports on the outcome of a death investigation
‘(1) This section applies where the Commissioner has carried out an investigation of a death under section (Northern Ireland Commissioner for Prison Complaints: investigations of death).
(2) The Commissioner shall make a report to—
(a) the Secretary of State;
(b) the controlling authority appearing to the Commissioner to have the most direct responsibility over the matters covered by the investigation (where that authority is not the Secretary of State); and
(c) a coroner who is holding or who is to hold an inquest into the death.
(3) The Commissioner may also make a report to any other person the Commissioner considers should receive a report.
(4) The Commissioner shall exercise the power under subsection (3) to ensure that a report is made to at least one person who—
(a) is a personal representative of the deceased,
(b) was the partner, or other close relative, of the deceased at the time of the death, or
(c) appears to the Commissioner to have been a friend of the deceased at the time of the death.
(5) The duty under subsection (4) does not apply if, after taking all reasonable steps to ascertain the identity of, and a means of contacting, a person falling within that subsection, the Commissioner is unable to comply with it.
(6) In subsections (2) to (4) “report” means a report in writing on the outcome of the investigation.
(7) The Commissioner may—
(a) make different reports under this section to different persons;
(b) show any person a draft of the whole or any part of a report to be made under this section;
(c) publish the whole or any part of a report made under this section.
(8) The Commissioner must not under subsection (7)(c)—
(a) identify the deceased person without the consent of a personal representative of that person,
(b) identify any individual from whom any information in the report was received, or
(c) except where the Commissioner thinks it necessary in the public interest, identify any individual to whom any information in the report relates.
(9) Subsection (8)(c) does not apply in relation to the deceased person.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 69

Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State
‘(1) The Secretary of State may request the Commissioner to investigate any matter mentioned in subsection (3) or (4) which is specified in the request.
(2) The Secretary of State shall consult the Commissioner before making a request under this section.
(3) A request may specify any matter relating to events which have (or may have) occurred—
(a) at applicable premises;
(b) while a person is in the custody of prison officers or prisoner custody officers, or under their control or escort, anywhere in the world;
(c) in the course of exercising any function of the Secretary of State relating to prisons or persons detained in prison;
(d) in the course of exercising any functions of a prison officer or prisoner custody officer.
(4) A request may also specify any matter the Secretary of State considers is (or may be) linked to events falling within subsection (3).
(5) It is the duty of the Commissioner to investigate any matter which is the subject of a request under this section.
(6) Subject to any directions given to the Commissioner by the Secretary of State, it is for the Commissioner to determine the scope of, and the procedure to be applied to, an investigation under this section.
(7) Subject to any such directions, the Commissioner may at any time reopen—
(a) an investigation previously carried out under this section; or
(b) an investigation carried out by the Prisoner Ombudsman for Northern Ireland of matters referred to the Ombudsman by the Secretary of State (so far as relating to matters that could be the subject of a request under this section);
and a re-opened investigation shall be treated for the purposes of this Part as a separate investigation under this section.
(8) In subsection (3)—
(a) the reference in paragraph (c) to the Secretary of State is to the Secretary of State having responsibility for prisons in Northern Ireland;
(b) the references to functions are to functions conferred by or under any Act or Northern Ireland legislation (including, in the case of prison officers, functions exercisable by virtue of section 8 of the Prison Act (Northern Ireland) 1953 (N.I. 18) (constabulary powers etc.).’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 70

Northern Ireland Commissioner for Prison Complaints: reports on the outcome of an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State)
‘(1) This section applies where the Commissioner has carried out an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State).
(2) The Commissioner shall report in writing on the outcome of the investigation to—
(a) the Secretary of State; and
(b) such other persons (if any) as the Secretary of State may direct.
(3) Subject to any directions given by the Secretary of State, the Commissioner may—
(a) make different reports under this section to different persons;
(b) show any person a draft of the whole or any part of a report to be made under this section;
(c) publish the whole or any part of a report made under this section.
(4) Where the investigation relates to a death or matters connected with a death, the name of the deceased person must not be published under subsection (3)(c) without the consent of a personal representative of that person.
(5) In the case of any investigation, a report published under subsection (3)(c) must not—
(a) identify any individual from whom any information in the report was received, or
(b) except where the Commissioner thinks it necessary in the public interest, identify any individual to whom any information in the report relates.
(6) Where the investigation relates to a death or matters connected with a death, subsection (5)(b) does not apply in relation to the deceased person.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 71

Northern Ireland Commissioner for Prison Complaints: powers of Commissioner to obtain information etc.
‘(1) This section confers powers on the Commissioner for the purposes of any investigation under this Part.
(2) The Commissioner may require a person the Commissioner thinks is able to provide information or produce a document relevant to the investigation to do so.
(3) The Commissioner has the same powers as the High Court in relation to—
(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad); and
(b) the production of documents.
(4) The Commissioner may also require a person to secure that access to any premises (other than premises used solely as a dwelling) is given to the Commissioner or members of the Commissioner’s staff for the purpose of inspecting the premises or any documents or other things situated on them.
(5) Such access must be given at such reasonable times as the Commissioner may specify.
(6) The Commissioner may require any person who is at the premises at those times to provide such reasonable assistance as the Commissioner may specify.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 72

Northern Ireland Commissioner for Prison Complaints: exceptions etc. to Commissioner’s powers under section (Powers of Commissioner to obtain information)
‘(1) Subject to subsection (3), no person shall be compelled by virtue of this Part to give any evidence or do any other thing which that person could not be compelled to do in civil proceedings before the High Court.
(2) No obligation to maintain secrecy or other restriction on the disclosure of information obtained by or provided to persons in Her Majesty’s service, whether imposed by or under any enactment or by any rule of law, applies in relation to an investigation.
(3) The Crown is not entitled in relation to an investigation to any privilege in respect of the production of documents or of the giving of evidence as would otherwise be allowed in legal proceedings.
(4) No person shall be compelled or authorised by virtue of this Part—
(a) to provide any information relating to proceedings of the Cabinet or of any Committee of the Cabinet; or
(b) to produce any document relating to such proceedings.
(5) For this purpose a certificate which—
(a) is issued by the Secretary of the Cabinet with the approval of the Prime Minister, and
(b) certifies that any information or document (or part of a document) relates to any proceedings mentioned in subsection (2),
is conclusive of the matters certified.
(6) In this section “investigation” means any investigation under this Part.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 73

Northern Ireland Commissioner for Prison Complaints: obstruction and contempt
‘(1) The Commissioner may, if satisfied that the condition in subsection (2) is met in relation to a person, refer the matter to the High Court.
(2) The condition is that the person—
(a) has failed to comply with a requirement imposed by virtue of section (Northern Ireland Commissioner for Prison Complaints: powers of Commissioner to obtain information etc) or has otherwise, without lawful excuse, obstructed the performance of any of the Commissioner’s functions; or
(b) has committed an act or omission in relation to an investigation which, if the investigation were proceedings in the High Court, would constitute contempt of court.
(3) The High Court may inquire into the matter referred by the Commissioner and, if satisfied that the condition in subsection (2) is met, may deal with the person concerned as if that person were in contempt of court.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 74

Northern Ireland Commissioner for Prison Complaints: legal and other representation
‘The Commissioner may determine the circumstances under which and the extent to which persons may be represented by lawyers or other persons in connection with complaints or with investigations under section (Northern Ireland Commissioner for Prison Complaints: investigations of deaths) or (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State).’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 75

Northern Ireland Commissioner for Prison Complaints: disclosure of information etc.
‘(1) For the purposes of this section information is protected information if it is obtained by the Commissioner (or a member of the Commissioner’s staff)—
(a) in carrying out functions in relation to, or otherwise in connection with, a complaint;
(b) in carrying out or otherwise in connection with an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations of deaths) or (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State); or
(c) from the Information Commissioner by virtue of section 76 of the Freedom of Information Act 2000 (c. 36).
(2) Such information ceases to be protected information 70 years after it is first obtained as mentioned in subsection (1).
(3) Protected information shall not be disclosed except—
(a) for the purposes of any of the Commissioner’s functions in relation to a complaint or to matters arising in connection with it;
(b) in the case of information obtained in connection with an investigation, for the purposes of—
(i) an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations of deaths) or (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State), or
(ii) any of the Commissioner’s functions in relation to such an investigation or to matters arising in connection with it;
(c) for the purposes of proceedings for—
(i) an offence under the Official Secrets Act 1989 (c. 6) alleged to have been committed in relation to protected information; or
(ii) an offence of perjury alleged to have been committed in relation to anything being done in connection with the Commissioner’s functions;
or for the purposes of an investigation with a view to the taking of such proceedings;
(d) for the purposes of proceedings under section (Northern Ireland Commissioner for Prison Complaints: obstruction and contempt);
(e) to a coroner (or a person acting on behalf of a coroner) for the purposes of an inquest;
(f) to the Chief Inspector of Criminal Justice in Northern Ireland for the purposes of the exercise of any of the functions of that office;
(g) to Her Majesty’s Chief Inspector of Prisons for England and Wales for the purposes of the exercise of any of the functions of that office;
(h) in the case of information to which subsection (4) applies, to the Information Commissioner;
(i) in the case of information to which subsection (7) applies, to any person to whom the Commissioner thinks it should be disclosed in the public interest.
(4) This subsection applies to information if it appears to the Commissioner to relate to—
(a) a matter in respect of which the Information Commissioner could exercise a power conferred by an enactment mentioned in subsection (5); or
(b) the commission of an offence mentioned in subsection (6).
(5) Those enactments are—
(a) Part 5 of the Data Protection Act 1998 (c. 29);
(b) section 48 of the Freedom of Information Act 2000 (c. 36);
(c) Part 4 of that Act.
(6) Those offences are offences under—
(a) any provision of the Data Protection Act 1998 (c. 29) other than paragraph 12 of Schedule 9;
(b) section 77 of the Freedom of Information Act 2000 (c. 36).
(7) This subsection applies to information if—
(a) in the opinion of the Commissioner it reveals or otherwise relates to a serious threat to the health or safety of a person; or
(b) it does not fall within paragraph (a) but the Commissioner is nevertheless of the opinion that it should be disclosed for the purpose of enabling such a threat to be dealt with.
(8) No person mentioned in subsection (10) may be called upon in any proceedings to give evidence of protected information within subsection (1)(a) or (b).
(9) Subsection (8) does not apply in relation to proceedings mentioned in subsection (3)(c) to (e).
(10) Those persons are—
(a) the Commissioner;
(b) a member of the Commissioner’s staff;
(c) a person from whom advice is obtained by virtue of paragraph 11 of Schedule (The Northern Ireland Commissioner for Prison Complaints).
(11) For the purposes of the law of defamation the publication of any matter by the Commissioner for purposes connected with his functions (including functions under this section) shall be absolutely privileged.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 76

Northern Ireland Commissioner for Prison Complaints: disclosure prejudicial to national security or contrary to public interest
‘(1) The Secretary of State may give a notice to the Commissioner stating that the disclosure of—
(a) any document or information specified in the notice, or
(b) any description of document or information so specified,
would, in the opinion of the Secretary of State, prejudice national security or would otherwise be contrary to the public interest.
(2) Nothing in this Part authorises or requires the Commissioner (or any member of the Commissioner’s staff) to disclose to any person or for any purpose any document or information covered by a current notice under subsection (1).’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 77

Northern Ireland Commissioner for Prison Complaints: offence of wrongful disclosure
‘(1) It is an offence for a person to whom this section applies—
(a) to disclose information in contravention of section (Northern Ireland Commissioner for Prison Complains: disclosure of information etc.), or
(b) to disclose any document or information specified, or of a description specified, in a current notice under section (Northern Ireland Commissioner for Prison Complaints: disclosure prejudicial to national security or contrary to public interest).
(2) The persons to whom this section applies are—
(a) the Commissioner,
(b) any member of the Commissioner’s staff, and
(c) any person from whom advice is obtained advice by virtue of paragraph 11 of Schedule (The Northern Ireland Commissioner for Prison Complaints).
(3) A person who is guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 78

Northern Ireland Commissioner for Prison Complaints: notification of matters of potential concern to the police or other authorities
‘(1) If while performing any functions the Commissioner forms the opinion—
(a) that there should be a criminal investigation into any matter, or
(b) that a controlling authority should, as a matter of urgency, take action in relation to any matter,
the Commissioner may notify a police force or that authority (as the case may be) of the matter as soon as is practicable.
(2) A notification under subsection (1) may include such information relating to the matter in question as the Commissioner thinks fit.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 79

Northern Ireland Commissioner for Prison Complaints: power to pay expenses
‘(1) Subject to subsection (3), the Commissioner may make payments (of such amounts as the Commissioner thinks fit) towards the expenses of—
(a) a person who has made an eligible complaint; or
(b) a person who provides the Commissioner with information or other assistance in relation to an eligible complaint or to an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations of deaths) or (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State).
(2) The Treasury may issue guidelines in relation to—
(a) the circumstances under which payments under this section may be made; and
(b) the amounts of such payments.
(3) The Commissioner must comply with any guidelines so issued.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 80

Transitional provision: the Prisoner Ombudsman for Northern Ireland
‘(1) The Prisoner Ombudsman for Northern Ireland (“the Ombudsman”) has no power to act in relation to—
(a) any complaint made after commencement (whether or not it relates to events which occurred before or on or after 2 May 2005);
(b) any death or other matter occurring after commencement;
(c) any matter referred by the Secretary of State after commencement.
(2) The Ombudsman shall continue to act (under the applicable terms of reference) in relation to—
(a) any complaint made before commencement (“an existing complaint”),
(b) any death occurring before commencement (“an existing death investigation”), and
(c) any other matter referred to the Commissioner by the Secretary of State before commencement (“an existing referral investigation”),
unless the complaint, death or matter is treated by the Commissioner as one to be dealt with under this Part by virtue of subsection (4).
(3) The Ombudsman may re-open a completed investigation into any death or other matter referred by the Secretary of State (unless it has previously been re-opened under section (Northern Ireland Commissioner for Prison Complaints: investigations of death) or (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State) by the Commissioner).
(4) The Commissioner may treat—
(a) an existing complaint (so far as relating to matters within the complaints remit) as an eligible complaint (whether or not it relates to events which occurred before or on or after 2 May 2005);
(b) an existing death investigation (if it relates to a death that would fall within the deaths remit if it occurred after the commencement of this section) as an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations of death);
(c) an existing referral investigation (so far as relating to matters that could be the subject of a request under section (Northern Ireland Commissioner for Prison Complaints: investigtions requested by the Secretary of State)) as an investigation under section (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State).
(5) For the purposes of any complaint, death or matter which is to any extent dealt with under this Part by virtue of subsection (4), things done by or in relation to the Ombudsman shall be treated as having been done by or in relation to the Commissioner.
(6) In this section “commencement’ means the commencement of this section.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 81

Northern Ireland Commissioner for Prison Complaints: interpretation
‘(1) In this Part—
“applicable premises” means a prison, a young offenders centre or a remand centre in Northern Ireland;
“the complaints remit” is to be construed in accordance with section (Northern Ireland Commissioner for Prison Complaints: eligible complaints: general)(2);
“controlling authority” means—
(a) a person listed in Schedule (Northern Ireland Commissioner for Prison Complaints: controlling authorities); or
(b) any person of a description specified in an order made by the Secretary of State;
“the deaths remit” is to be construed in accordance with section (Northern Ireland Commissioner for Prison Complaints: investigations of deaths)(2);
“document” includes information recorded in any form;
“eligible”, in relation to a complaint or part of a complaint, means eligible for the purposes of this Part in accordance with section (Northern Ireland Commissioner for Prison Complaints: eligible complaints: general)(1) (and cognate expressions are to be construed accordingly);
“events” includes any conduct or omission;
“police force” means—
(c) the Police Service of Northern Ireland;
(d) a police force in England, Wales or Scotland;
(e) the Ministry of Defence Police;
(f) the British Transport Police Force;
and “police officer” shall be construed accordingly;
“prison officer” means an individual appointed to a post under section 2(2) of the Prison Act (Northern Ireland) 1953 (N.I.18);
“prisoner custody officer” means a person who is a prison custody officer within the meaning of Chapter 3 of Part 8 of the Criminal Justice and Public Order Act 1994 (c. 33);
“the relevant person”, in relation to a complaint, has the meaning given by section (Northern Ireland Commissioner for Prison Complaints: eligible complaints: general)(10);
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 (c. 30).
(2) In this section, “prison” has the same meaning as in the Prison Act (Northern Ireland) 1953 (N.I.18).
(3) Any power under this Part to make an order modifying a provision of any legislation includes power to amend, repeal or revoke that provision.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 82

Northern Ireland Commissioner for Prison Complaints: power to modify certain provisions
‘(1) The Secretary of State may by order modify Schedule (Northern Ireland Commissioner for Prison Complaints: complaints remit) so as to—
(a) add a description of matter to that Schedule; or
(b) amend or repeal any description of matter for the time being specified there.
(2) The power in subsection (1) may not be exercised so as to exclude any matters that fall within a description specified in Schedule (Northern Ireland Commissioner for Prison Complaints: complaints remit) when this Act is passed.
(3) The Secretary of State may by order modify Schedule (Northern Ireland Commissioner for Prison Complaints: deaths remit) so as to—
(a) add a description of death; or
(b) amend or repeal any description of death for the time being specified there.
(4) The power in subsection (3) may not be exercised so as to exclude any deaths that fall within a description specified in Schedule (Northern Ireland Commissioner for Prison Complaints: deaths remit) when this Act is passed.
(5) The Secretary of State may by order modify subsection (3) of section (Northern Ireland Commissioner for Prison Complaints: investigations requested by the Secretary of State) so as to—
(a) add a description of events; or
(b) amend or repeal any description of events for the time being specified in that subsection.
(6) The Secretary of State may by order modify section (Northern Ireland Commissioner for Prison Complaints: disclosure of information etc.) so as to—
(a) add an exception to subsection (3);
(b) amend or repeal an exception for the time being specified in that subsection; or
(c) specify further circumstances in which subsection (8) does not apply.
(7) The power in subsection (6) may not be exercised so as to have the effect of removing or limiting an exception contained in section (Northern Ireland Commissioner for Prison Complaints: disclosure of information etc.)(3)(a) or (b) when this Act is passed.
(8) The power under section 123(3)(c) to make consequential provision in an order under this section includes power to modify this or any other Act or any subordinate legislation, or any Northern Ireland legislation or instrument made under Northern Ireland legislation, whenever passed or made.
(9) Nothing in subsection (2), (4) or (7) prevents a power under this section being used to remove any provision that is spent.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 83

Northern Ireland Commissioner for Prison Complaints: power to confer new functions
‘(1) The Secretary of State may by order make provision (whether by amending this Part or otherwise) for or in connection with—
(a) the conferring of additional functions on the Commissioner;
(b) the conferring of functions on the Secretary of State in relation to any additional function conferred on the Commissioner.
(2) The power under section 123(3)(c) to make consequential provision in an order under this section includes power to modify this or any other Act or any subordinate legislation, or any Northern Ireland legislation or instrument made under Northern Ireland legislation, whenever passed or made.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 84

Further amendments relating to appeals in criminal cases
‘Schedule (Appeals in criminal cases) amends the Criminal Appeal Act 1968 (c. 19), the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) and other Acts relating to appeals in criminal cases.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 85

Amendments to armed forces legislation
‘Schedule (Amendments to armed forces legislation) contains—
(a) amendments to armed forces legislation (which make provision for service courts etc. corresponding to other provisions of this Act); and
(b) transitional provision relating to certain of those amendments.’.—[Maria Eagle.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 18

Offences under football banning order
‘If a constable has reasonable grounds to believe that a person (“P”) is about to breach the terms of a football banning order, he may require P to present his passport.’.—[Mr. Hollobone.]

Brought up, and read the First time.

Philip Hollobone: I beg to move, That the clause be read a Second time.
My new clause arises out of concerns expressed to us by the Police Federation. In Committee, on 16 October, Jan Berry, the police officer who gave evidence, said that she shared the concerns that I put to her:
“currently, officers only have the right to request to see passports, and that many individuals—for example, those subject to a football banning order—are acutely aware of that and decline”.——[Official Report, Criminal Justice and Immigration Public Bill Committee, 16 October 2007; c. 57, Q110.]

Vernon Coaker: I hope that I can persuade the hon. Gentleman to withdraw his amendment, because it is unnecessary. Football banning orders have been incredibly successful in reducing football-related violence here and abroad. The police already possess extensive and specific powers during a football control period, which commences five days before an overseas match or tournament. Banned individuals are required by the enforcing authority to report to a designated police station five days before an overseas match or tournament to surrender their passport and to report to a designated police station on match days.
If an officer has reasonable grounds for believing that a person has breached, or is about to breach, the terms of a football banning order, they can arrest them without warrant. Breaches of football banning orders are already offences. Under section 14J(1)(b) of the Football Spectators Act 1989, a breach of any requirement by the enforcing authority to surrender a passport during the control period is an offence. In those circumstances, under section 42 of the Police and Criminal Evidence Act 1984, summary arrest might be necessary in order to ascertain the identity of the person in question or to prevent that person from causing physical injury or loss or damage to property.
The new clause misunderstands the primary purpose of police ports operations. It is extremely rare for an individual subject to a football banning order to try and travel to an overseas tournament, because they do not have their passport. Just two people attempted to breach an order during the 2006 World cup. The police ports operation enables the police to identify known individuals whom they believe will cause violence, at which point they can prevent them from travelling and subject them to the courts and an almost instantaneous football banning order, which would require them to give up their passport. I hope that with that reassurance, the hon. Gentleman will recognise that significant powers are available to the police and that his new clause is unnecessary.

Philip Hollobone: I am very happy to withdraw my new clause on the proviso that the Minister agrees to write to Jan Berry at the Police Federation with his explanation.

Vernon Coaker: I shall do that, but I also spoke to the Association of Chief Police Officers’ lead on football-related disorder and violence, Assistant Chief Constable Steve Thomas, about this. He said that there was no issue with respect to passports and police officer powers. I will write to Jan Berry to inform her of that.

Philip Hollobone: I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 24

Provision of attendance centres
‘(1) Section 221 of the Criminal Justice Act 2003 (c. 44) (provision of attendance centres) is amended as follows.
(2) In subsection (1) after “provide attendance centres”, insert “for offenders aged 18 and under 21; and through the Youth Justice Board to provide funding for attendance centres for offenders aged 10 and under 18”.
(3) After subsection (1) insert—
“(1A) Youth offending teams may provide attendance centres for offenders aged 10 and under 18.”
(4) In subsection (2) for “25” substitute “21”.
(5) In subsection (3) after “centres”, insert “for offenders aged 18 and under 21”.
(6) After subsection (3) insert—
“(4) For the purpose of providing attendance centres, youth offending teams may make arrangements with any authority or organisation for the use of their premises.”’.—[Mr. Heath.]

Brought up, and read the First time.

David Heath: I beg to move, That the clause be read a Second time.
The new clause extends to youth offending teams the capacity to provide attendance centres for offenders aged 10 and under 18 and to make arrangements with any authority organisation for the use of their premises or to provide attendance centres for offenders aged 18 and under 21.

Edward Garnier: We probably do not need this new clause, but it provides me with an opportunity to mention a matter of pretty widespread concern, namely the way in which we deal with teenage offenders. I do not want to say too much about this because we have discussed it before. I do not know whether the Minister knows this, but I regret to say that this morning a 15-year-old boy hanged himself at Lancaster Farms young offenders institution. He was the 30th boy of that, or that sort of age, to have died in custody since 1990 or it may even be since 2000. In any event, it is an appalling tragedy, irrespective of what caused that youngster to be in custody in the first place. It gives us a good reason to think carefully about how we incarcerate youngsters, while at the same time bearing in mind the need to protect the public from criminal activity. I do not need to say any more. I am sure that the Minister will have plenty to say.

Sally Keeble: I also wanted to pick up on the same point either on this or a later new clause. It concerns the appropriate sentences and the provision of facilities for young offenders. The young person concerned had a sentence of only one month and 14 days and had been taken back to prison because of a breach of his licence. That such a short custodial sentence should result in the loss of life makes one wonder about sentencing policies, whether the alternatives to custody are sufficient and appropriate and exactly what we are doing with these young people. I was closely involved in an earlier case in which the death, sadly, was not suicide. If we are sending young people to custodial institutions that are unable to ensure their safety for quite short periods of time, there must be general questioning of the type of sentence and the type of security that we provide for them. The loss of this young boy—the 30th since 1990—is completely disproportionate.

David Hanson: May I confirm to the Committee that Liam McManus was found dead in his cell at 7.45 this morning at Lancaster Farms. Liam, as my hon. Friend the Member for Northampton, North and the hon. and learned Member for Harborough have confirmed, entered the institution on 8 November and was sentenced to one month and 14 days following an earlier breach of his licence. He had not been identified as being at risk of self-harm and he was indeed in a single cell at the time of his death. Obviously, I regret Liam’s death and express my condolences to his family, who, I believe, are from the St. Helens area of the north-west of England. As is normal in these cases, the prison and probation ombudsman will be investigating and it would be inappropriate of me to prejudge that investigation still further, apart from giving the Committee the broad facts of Liam’s death this morning.
Obviously I remain concerned in general terms about the potential for self-harm, not just in young people’s institutions, secure training centres and elsewhere, but in the adult prison estate as well. My hon. Friend the Under-Secretary of State for Justice deals very closely with a suicide prevention group and is doing considerable work in the Department with such groups to try to reduce self-harm.
The Committee will understand that it is in nobody’s interests not to take adequate steps to prevent such self-harm. If there are lessons to be learned from the incident this morning and from other incidents, we will obviously seek to learn from them. My hon. Friend the Member for Northampton, North and the hon. and learned Member for Harborough will know that, in general terms, we have established a review of some aspects of the juvenile estate in terms of restraint at the moment. I am happy to receive representations from Members on any issues that they feel can be improved.

Sally Keeble: Can my right hon. Friend say something about the assessment of whether somebody is considered a suicide risk? I have written to him about the case of another of my constituents, a young man whose mother fears for his mental health, even though the institution where he is being held says that he is doing fine. I am concerned about such discrepancies and about the robustness of the assessments that are undertaken. I have written to my right hon. Friend about this case. Could he just double-check who conducted the assessment and ensure that it is accurate?

David Hanson: I will certainly look at the case that my hon. Friend has referred to me. There is a professional judgment to be made about the potential for self-harm of any individual who enters the prison system, young offenders institutions or secure training centres.
In the case of Liam McManus, once again I do not wish to prejudge the prison and probation ombudsman’s report but my initial understanding is that he was not identified as being at possible risk of self-harm. The ombudsman will investigate this case and make a report, as he does on every self-inflicted death. Obviously that report will be published and Members, including the Member of Parliament for Liam’s constituency, can comment on it then.

Edward Garnier: May I make one request in relation to this tragic case? The coroner’s inquest into the suicide in 2005 of Gareth Price at the same young offenders institution, which I visited in October this year, only began earlier this month. Therefore, nearly two years have elapsed between the death and the beginning of the coroner’s hearing. There may be all sorts of good reasons for that delay in coroner’s proceedings, but it is one of the things that families of the deceased worry most about. If there is anything that the Minister or his officials can do to ensure that the necessary inquest that will follow today’s sad news can be expedited, I am sure that the young man’s family will be greatly assisted.

David Hanson: Again, it is in everybody’s interests that such inquests take place as quickly as possible. The hon. and learned Gentleman will know that the inquest into Gareth Price, who was aged 16 and found dead in similar circumstances in Lancaster Farms young offenders institution in January 2005, opened on 5 November 2007 at Lancaster shire hall. Sadly, his was not the last such death; the last death on the under-18 estate was that of Sam Elphick, who died at Hindley Green young offenders institution near Wigan on 15 September 2005. Every such death is a tragedy and obviously we wish to see that the lessons are learned from them. I assure the hon. and learned Gentleman and my hon. Friend that we will consider the prison and probation service ombudsman’s report into that case and learn whatever lessons we can to prevent such incidents in the future.
I am not able to accept the new clause that the hon. Member for Somerton and Frome so ably introduced. It would have a direct impact on the ability of the courts to use attendance centres as a requirement under the adult community order and as an option for dealing with adult violent offenders. It might lead to greater use of custody, it would damage the viability of attendance centres, and its approach to the Secretary of State and the Youth Justice Board would not be helpful. Having said all that, I should like to tell the hon. Gentleman that a review is ongoing into the use of attendance centres, and we are examining where they should sit within the youth justice system, with regard to youth offending services and adult offender management. I hope that he will allow me to receive the review and make recommendations in due course to the House.

David Heath: My brevity in introducing the new clause was because I felt that we had dealt with many of its issues during the early aspects of the Bill. The response that the Minister has just given, however, suggests that, although the new clause would be a terribly bad idea and a disaster for the entire system, the ongoing review may actually recommend it as the right way forward, in which case his view will reverse. So be it. It was worth putting the new clause before the Committee.
I cannot but refer to the point that the hon. and learned Member for Harborough made, and which I intended to make under new clause 57, standing in my name, which deals with the custody of young offenders rather than with the provision of attendance centres. The situation under discussion is tragic. We had for the most part yesterday on the Floor of the House a good and reasoned debate about the prisons estate, the way in which we deal with young offenders and the fact that far too many young people serve custodial sentences. It is extraordinary that this country feels the need to imprison so many more young people than any comparable country—comparable, because there are other countries that imprison more. It is sad, too. It suggests a societal breakdown that we ought to regret deeply.
It is even more regrettable when a young person is put into a prison environment and they take their own life. It happens far too often, and every incident should be a scar on our collective conscience. We will deal with those issues later, when I shall have more to say about the later new clauses. At this point, however, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 25

Offence of pretending to be a legal executive
‘(1) It is an offence for a person who is not a legal executive—
(a) wilfully to pretend to be a legal executive, or
(b) with the intention of implying falsely that that person is a legal executive, to take or use any name, title or description.
(2) A person who is guilty of an offence under subsection (1) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), and
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).
(3) In relation to an offence under subsection (1) committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (2)(a) to 12 months is to be read as a reference to six months.
(4) In this section “legal executive” means a Fellow of the Institute of Legal Executives.’.—[Mr. Burrowes.]

Brought up, and read the First time.

David Burrowes: I beg to move, That the clause be read a Second time.
The new clause replicates a similar clause that was introduced during the passage of the Legal Services Act 2007, for which I was a Committee member. It was buried deep within the recesses of that legislation, and it did not receive the light that it deserved in order to allow proper consideration of whether legal executives should be protected by way of their title. The point of this new clause is that all users of legal services should be clear that anyone who claims to be a legal executive is in fact professionally qualified, able to exercise such rights as are granted to fellows, and subject to regulation. The reason for including the definition that 
“‘legal executive’ means a Fellow of the Institute of Legal Executives”
is that the Institute of Legal Executives’ membership restricts the use of the term “legal executive” to fellows of ILEX. All members of ILEX—there are 23,000—recognise that the 7,000 who are fellows are properly entitled to call themselves legal executives but others are not. That is a condition of membership.
ILEX members’ concern is that non-members, who are not constrained by ILEX regulation, should not hold themselves out as legal executives. There are examples of that happening in a wide variety of legal areas in which legal executives involve themselves. Proper regulation and protection of the title of legal executive under statute is in the public interest, given that legal executives involve themselves in immigration advice, claims management services and many other areas, such as unopposed applications in county court proceedings. They also act as commissioners for oaths. 
I do not wish to go through the debates on the Legal Services Bill, which took up a good deal of time, but it is important, particularly given the extension of services and the opportunity to manage and partner in the matter of legal services, that the term “legal executive” should be clarified. It is in consumers’ interests to be properly assured that those providing legal services are competent and regulated. The new clause would provide such protection, which currently covers other persons who provide legal services but not legal executives.
It is also important to focus the term on fellows of the Institute of Legal Executives. In discussions of the Legal Services Bill, concern was expressed that protecting the title of legal executive could cause other grades of ILEX member to become liable to prosecution. However, given that ILEX membership restricts the use of the title to fellows, the new clause would provide a focused way to deal with a problem that could arise increasingly as legal services are extended to many areas. Perhaps it would be more appropriate to deal with the matter through regulatory provisions in the Legal Services Bill, but this is an opportunity that ILEX, perhaps not surprisingly, says is not to be missed.

David Heath: I concur.

Maria Eagle: An admirable speech from the hon. Member for Somerton and Frome.

David Heath: No notes.

Maria Eagle: Remarkable.
The Government take consumer protection seriously, as the hon. Member for Enfield, Southgate will be aware, having sat through proceedings on the Legal Services Bill, now an Act—it is a key principle of that legislation. I recognise fully the advantages of ensuring that consumers are clear who can use the title of legal executive. Making it an offence to pretend to be a legal executive is one way to achieve that.
The Legal Services Act 2007 already takes steps to protect consumers by ensuring that only qualified individuals who comply with an appropriate regulatory regime can provide legal services. It is therefore an offence for unqualified persons to carry on reserved legal activities or pretend to be entitled to do so. In addition, the titles of solicitor and barrister are specifically protected.
Following debate on the Legal Services Bill in the other place, the Government were persuaded of the need for an offence of pretending to be a barrister and introduced an amendment to that effect. The argument for protecting a professional title and creating a new offence must be considered case by case, as not all professional titles are protected in statute. It is sensible to consider in each case whether such protection is needed.
The Institute of Legal Executives has approached the Department to discuss the issue. My hon. Friend the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), has written to the noble Lord Hunt of Wirral stating her views. Although the Government accept the rationale behind the new clause, we have yet to be persuaded that the title of legal executive should be protected or that the new clause is as technically perfect as it needs to be, although that is a minor point. I am perfectly happy to discuss their concerns further with the hon. Member for Enfield, Southgate and the Institute for Legal Executives. We do not know whether the institute has yet consulted with its members or with consumers, and would be interested to hear what they have to say before considering fully whether such a measure is the right way forward. However, the Government are happy to continue those discussions with ILEX and with other relevant stakeholders and interested parties, and examine whether further protection is required. At this stage, however, we are not ready to concur, so I hope that the hon. Gentleman will not seek to press his new clause.

David Burrowes: I am grateful for the hope that that offers to ILEX and to others. Reference was made to the Legal Services Act. The point that parties such as ILEX wish to make, which is a good one, is that, of the various types of legal practitioner referred to in the Act, legal executives constitute the only established professional group that does not have statutory protection. They believe that it should be clear that their powers are exercised in accordance with the wishes of Parliament and that individuals who rightly claim to be legal executives should be given appropriate protection. However, I welcome the indication that there will be further discussion and consideration, and I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 53

Rehabilitation of persons convicted of offences committed under the age of 18
‘After section 1 of the Rehabilitation of Offenders Act 1974 insert—
“1A Rehabilitation of persons convicted of offences committed under the age of 18
(1) Subject to subject (2) below, where an individual has been convicted of any offence or offences and where these were committed before the individual attained the age of 18, then on reaching the age of 18 that individual should automatically be treated as a rehabilitated person.
(2) A person shall not be treated as a rehabilitated person for the purposes of this Act under subsection (1) if the individuals offending behaviour before the age of 18 is deemed to be serious or persistent.
(3) The Secretary of State shall by regulations set out the criteria and procedures for any decisions under subsection (2).
(4) Regulations made under subsection (3) shall be subject to annulment in pursuance of either House of Parliament.”.’.—[Mr. Heath.]

Brought up, and read the First time.

David Heath: I beg to move, That the clause be read a Second time.

Nicholas Winterton: With this it will be convenient to discuss the following: New clause 54—Conditional discharge —
‘In the Crime and Disorder Act 1998, omit section 66(4).’.
New clause 57—Restrictions on custodial sentences for offenders aged under 18—
‘(1) In the title of section 152 of the Criminal Justice Act 2003 (c. 44) (general restrictions on imposing discretionary custodial sentences), after “general restrictions on imposing discretionary custodial sentences”, insert “on offenders aged 18 or above”.
(2) In section 152(1) of that Act after “where a person”, insert “aged 18 or above”.
(3) After section 152 of that Act insert—
“152A Restrictions on custodial sentences for offenders aged under 18
(1) Notwithstanding anything in this or any other Act, a court shall only pass a sentence of custody on a person under the age of 18 as a measure of last resort and where—
(a) the offence committed caused or could reasonably have been expected to cause serious physical or mental harm to another or others, and
(b) a custodial sentence is necessary to protect the public from a demonstrable and imminent risk of serious physical or mental harm.
(2) The court shall state in open session its reasons for passing any sentence of custody under this section.”.
(4) In section 90 of the Powers of Criminal Courts (Sentencing) Act 2000—
(a) after the words “the court shall”, omit “(notwithstanding anything in this or any other Act)”; and
(b) after the words “at the time the offence was committed” insert “and if the conditions set out in section 152A of the Criminal Justice Act 2003 are met”.
(5) In section 91(3) of the Powers of Criminal Courts (Sentencing) Act 2000, before the words “the court may” insert “and if the conditions set out in section 152A of the Criminal Justice Act 2003 are met.”.
(6) In section 100 of the Powers of Criminal Courts (Sentencing) Act 2000—
(a) in subsection (1)(a) omit “sections 226 and 228 of the Criminal Justice Act 2003”;
(b) for subsection (1)(b) there is substituted—
“(b) the court is of the opinion that the conditions set out in section 152A of the Criminal Justice Act 2003 are met”.
(7) In the Criminal Justice Act 2003, omit sections 226 and 228.’.
New clause 58—Pre-sentence reports and other requirements for persons under the age of 18—
‘(1) At the end of section 156 of the Criminal Justice Act 2003 (c. 44) (procedural requirements for imposing community sentences and discretionary custodial sentences: pre-sentence reports and other requirements) insert—
“(9) All provisions of this section are subject to the requirements of section 156A below in relation to offenders aged under 18.”.
(2) After section 156 insert—
“156A Pre-sentence reports and other requirements for persons aged under 18 before a custodial sentence may be imposed
(1) A court shall not pass a sentence of custody on a person under the age of 18 unless it has obtained and considered a pre-sentence report which includes information from the relevant local authority stating—
(a) the circumstances relating to the offender and the offence or offences of which the offender has been convicted,
(b) whether the offender appears to be a child in need as set out in section 17 of the Children Act 1989, and if so details of the offender’s needs as assessed by the local authority, and
(c) the services the local authority has provided to meet the needs of the child or young person.
(2) The court may require the attendance at court of a senior official of the relevant local authority or any other local authority in order to determine what further services may be provided which may prevent or avoid the need for a custodial sentence.
(3) The court may not pass a custodial sentence unless it is satisfied—
(a) if the offender is a child in need, that services have been provided by the local authority which were appropriate or sufficient to meet the child’s needs, and
(b) that the provision of further, or any, services by the local authority would not prevent or avoid the need for a custodial sentence,
unless a custodial sentence is necessary to protect the public from an imminent and demonstrable risk of serious physical or mental harm.
(4) Each local authority must submit an annual report to the Secretary of State and the Lord Chancellor setting out the numbers and circumstances of all the children who have been sentenced to custody from that local authority area.
(5) For the purposes of this section “relevant local authority” means the local authority in which the offender was habitually resident at the time of committing the offence or offences in relation to which sentencing is being considered by the court. In the event that the offender is no longer resident in that local authority area at the time of sentencing, or if there is any doubt as to the relevant local authority, the court may of its own volition or upon the request of any party determine which is the relevant local authority.”.’.
Each of those proposed new clauses has been tabled in the name of the hon. Member for Somerset and Frome. Have I got that right?
 Several hon. Members Somerton.

Nicholas Winterton: I shall get it right before we finish, David.

David Heath: There is not very long to go now, Sir Nicholas.
The new clauses bring us back to some of the issues that we discussed in relation to part 1 of the Bill. It is a strange aspect of our proceedings that we reach the end and yet seem to be discussing things that we have already discussed, but that does not make the points that are encompassed in the new clauses any the less important. I was very brief in my remarks on the previous proposal, so I want to spend a little longer on the present group.
New clause 53 deals with the Rehabilitation of Offenders Act 1974 and I do not think that I need to spend long on it. It would invoke the Act for a young person who was convicted of a less serious crime at the point when they reached their 18th birthday. In other words, it would mean that young people would start with a clean sheet when they reached the age of majority, unless they had been convicted of a serious or persistent crime. It would work on the basis that children should be treated as children and on an acceptance of the idea that children, like adults, might make mistakes. We would be expressing the hope that the sentence imposed had had the desired effect and that children should start their adult life with a clean sheet.
The point is quite an important one. I accept that if someone has a string of convictions, or is guilty of a serious crime, the position would be different. Nevertheless, it seems to me to be appropriate to take cognizance of the fact that things that we do as children should not saddle us for a prolonged period of time—certainly not in those crucial years on reaching majority when one is beginning to start to seek a first job, or a place in further education, when there is a risk of serious prejudice to the rest of the person’s life.
New clause 54 addresses an issue that we have certainly already discussed: that at the moment a court cannot impose a conditional discharge of a youth conditional caution. The same applies to final warnings. It seems reasonable that a court should have full discretion to apply a disposal that seems appropriate under all the circumstances and after consideration of the individual case, but at the moment the law prohibits that. It seems to me that there is no obvious reason why the court should not have the option of a conditional discharge, if that is the right way of dealing with an offender at that point.
The purpose of new clause 58 is to ensure that when an offender is under 18 and is to be given a custodial sentence, appropriate local authority provision to meet the needs of the offender is considered by the local authorities and the courts. That would prevent courts from sentencing children and young people to custody if it appeared that further service provision could avoid custody. We come directly back to the point that we were discussing on the previous amendment: whether there are ways of preventing children and young people from being put into custody, which we all say that we want to avoid. I accept at face value what the Government are saying on this issue, in terms of their earlier provisions within the Bill—part of its objective is to divert young people away from a custodial sentence.
The new clause would ensure that alternatives to the custodial sentence are applied, even at the point at which the court has decided that perhaps a custodial sentence is justified, and it would cause the court to determine whether it is justified for the punishment of the offender or for the protection of the public. If it is for the protection of the public and that is the only disposal that provides for that, there should be no question. But if we are talking about a custodial sentence for the purpose of punishment there may be alternatives that are more suitable, which will have a better effect on the recidivism of the offender. To enable the local authorities, the Secretary of State and others to step back and take an overview of the needs of the particular individual is no bad thing.
New clause 57 is perhaps the most important of the clauses within this group of amendments, so I would like to take a little time with it. It would introduce a statutory custody threshold that must be tested before any young person is sentenced to custody, ensuring that it is a matter of last resort, and that it is being used for public protection. I made some reference to this in the discussion on earlier provisions, but we have an extraordinarily large number of children and young people in prison in this country. I will give the Committee some figures. For every 100,000 children in the population of England and Wales, about 23 are in custody. The equivalent figure in France is six; in Spain it is two; in Finland it is 0.2. The number of 15 to 17-year-olds in prison increased by 98.6 per cent. in 10 years, between 1995 and 2005, from 1,675 to 2,326. We should be very concerned about that.
We should also be concerned about the sort of young person who is in prison. We often talk about the underachievement, in academic terms, of adult prisoners, but we should recognise the difficulty for young people as well. Nearly half of the children in custody had literacy and numeracy levels lower than an average 11-year-old; over half of them had a history of being in care or social services involvement; 40 per cent of girls and 25 per cent. of boys reported suffering violence at home. One in three girls and one in 20 boys reported sexual abuse; 40 per cent. of boys and 67 per cent. of girls had serious mental health problems and over half reported dependence on a drug in the year prior to imprisonment.
We must then look at what is happening to young people within the prison system. I know that there have been strenuous efforts to improve that. The Minister talked about processes of restraint and the things that happen. However, we should recognise that the inspections and considerations that review the treatment of young offenders in prison suggest that, even with the best will in the world, there are still serious weaknesses. That is not intended as an attack on prison staff—far from it.
Indeed, my noble Friend Lord Carlile of Berriew, whose arguments in his role as independent assessor are often supported by the Government, in his 2006 inquiry said that
“some treatment of children in custody would, in any other circumstances, trigger a child protection investigation and could even result in criminal charges.”
That is quite serious stuff from a respected colleague. When we look at the utility of keeping those young people in custody, we will see that we are spending an enormous amount of money on custody—£280 million a year from the Youth Justice Board. However, we know that 76 per cent. of those who are discharged from custody reoffend within one year. In other words, it is a revolving door. With regard to discouraging reoffending, we are paying for no discernible effect.
It seems to me that some of the other disposals are so much more effective for that age group. Some of them have been brought forward by the Government in the Bill, and I applaud that. That was discussed at length earlier and we have said that we think it is of value. Having a higher threshold before sending people into custody, or at least a higher level of consideration, must be a good thing per se. It is beneficial in terms of effectiveness, budget and, most importantly, the effect that it has on those young people, so that we do not have another Liam in our prison estate. That is what this section of the Bill is about and that is why the new clause is a serious issue.
Having a custody threshold for young people is not a new idea. We used to have it in English statute law, in section 14 of the Criminal Justice Act 1982. It was inserted into the 1982 Act against the wishes of the Conservative Government by a noble Lady on the Labour Benches. The Government resisted it and later applauded it as a necessary and valuable addition to the Act.
However, that provision was repealed by the Criminal Justice Act 1991. It set a custody threshold for people under the age of 21. Now the operative age would be 18. There is clear evidence that it had a significant effect on the number of young people who were sent into custody while it was in operation. The Government ought to think seriously about whether that would be a useful addition for reminding the courts of the seriousness of reducing a young person to a custodial sentence.

David Hanson: I thank the hon. Member for Somerton and Frome for bringing forward his proposals. This is a useful discussion. He will know that we had a long discussion in relation to part 1 of the Bill about the use of custody and our wish to see other out-of-court disposals that will result in a reduction in custody and give further opportunities through the youth reoffending order to ensure that we do not put individuals in custody. He has raised a number of points with regard to the clauses. It might be helpful if I tried to address some of the points that he has brought forward.
As for new clause 53, I accept that it is helpful to ensure that young adults are moved away from offending and are helped into employment. One of our big objectives through work with the Corporate Alliance for Reducing Re-offending is to look at how we can help the employment of offenders. That is key to getting individuals who are leaving the custodial estate at the age of 18 into employment. Indeed, we are gearing some of the training programmes and work in the estate to secure employment and skill levels that are consummate to the job market outside.
The hon. Gentleman will know that, in 2002 and during the past couple of years, we have been looking at the document entitled “Breaking the cycle: Taking stock of progress and priorities for the future”. It reports on how to support individuals to get back into employment as well as on the several changes that have been made. Since that report, the Safeguarding Vulnerable Groups Act 2006, which followed the Bichard report, has come into play. It means that we need to look into how and when, and under what circumstances, we consider the employment of ex-offenders in many areas of employment. The Bichard report has put into the pot some significant new areas for discussion following our original “Breaking the cycle” report.
We are re-examining whether we need to update the policy proposals in “Breaking the cycle”, and whether we need to look at new arrangements under the Rehabilitation of Offenders Act 1974 not only for young people, but adults. I ask the hon. Gentleman to reflect on the fact that his new clause is serious and would have a major impact on the employment prospects of young people and pose a risk element for employers and the public at large. I ask him to withdraw it because such issues need full examination in the light of our original objectives in “Breaking the cycle” and our current thinking into how ex-offenders, both young and over the age of 18, can be employed in the community at large.
I am keen to ensure that young people and adult prisoners are given fair opportunities to get back into the employment market. As the hon. and learned Member for Harborough and the hon. Gentleman will agree and as our debate on prisons highlighted, there is an element of consensus that employment skills, raising those skills and employability are the key drivers of the prevention of re-offending in respect of people throughout the criminal justice system. However, the new clause is a step too far, given the stage that we have reached in our consideration of such matters.
New clause 57 would place unacceptable restrictions on custody for under-18s. I share the objective of the hon. Gentleman to reduce the level of custody of under-18s in our estate, but we need to examine it in terms of preventive measures, interventions and the work of the Youth Justice Board rather than take a blanket approach that would include the removal and restriction of the court’s ability to use custody for some of the most serious offences, including—under the new clause—the removal of the mandatory life sentence equivalent for murder. It is a serious matter.
I share the hon. Gentleman’s objective. I am happy to discuss with him outside Committee how we can reach a satisfactory conclusion, but the ability to be able to set the custody threshold at the level sought by the new clause would be difficult for both the public and the community at large to accept. It would place the public at significant risk and have the impact of examining sentences that would not be in agreement with the public’s expectations in the current circumstances.
New clause 58 would place additional duties and requirements on the courts and local authorities to consider prior to the court being able to impose custodial sentences on a young person. I hope that the hon. Gentleman will accept that it would duplicate existing safeguards and provisions in respect of information about the young offender, and would impose additional bureaucracy and cost, particularly on local authorities, for little extra gain. Safeguards exist in respect of the court’s duty towards the offender, and I am satisfied that the information that is available to it under the current arrangements enables it to make the appropriate sentencing decisions.
Finally, in relation to new clause 54, section 66(4) of the Crime and Disorder Act 1998 is designed to ensure that those who continue to offend, despite out of court intervention, can expect significant punishment, as we stated in the White Paper “No More Excuses”. A young offender will already have a number of out of court disposals which were conditional in some way, so another conditional one would be inappropriate. To continue to use conditional disposals for a young person who, when before the court, continues to offend despite previous interventions, risks undermining community confidence in the criminal justice system and undermining the potential intervention that custody might bring to prevent the young offender from further offending.
I accept that there is a real challenge for all hon. Members, inside and outside the Committee, to look at what we should do to tackle the level of reoffending mentioned by the hon. Gentleman. It is not acceptable to me or the Government to find that we have in the region of 75 per cent. reoffending rates from those leaving custody. Something is not working if that is the case. The solutions that the hon. Gentleman has brought forward today, while raising the issue, would add to some of the problems and would not necessarily stop the reoffending. They would also cause some difficulties in public perception.

David Burrowes: We all know the 75 per cent. statistic. However, the Minister says that that is the reoffending rate, but it is the reconviction rate. The reoffending rate may be a lot higher.

David Hanson: Indeed, that is for reconviction. Neither I, nor the hon. Gentleman know how much reoffending goes on that is not caught. Reconviction is at a very high level. I am not proud of that fact. It is something that we should address in detail. It is an issue that is of great importance and the hon. Gentleman is right to raise it. I ask him to withdraw the motion on the basis that we will examine how we can affect employability and will look at questions about the Rehabilitation of Offenders Act 1974 as part of the “Breaking the Cycle” review that we are undertaking. I do not think that the public or the Committee would accept that there is not still a role for custody for individuals in the community who commit very serious offences.

David Heath: That is precisely what I did not say in the new clause, which would make it very clear that custody is for those who present a threat to the protection of the public. I have no difficulty with that at all.
Having said that, I am grateful to the Minister for the way that he approached his response. I did not expect a meeting of minds on every issue. Why should there be? However, I do think that we can discuss matters in an intelligent and sensible way. I think that we did that yesterday, with the possible exception of a couple of speeches at the beginning.

David Hanson: Not by anybody here.

David Heath: Not by anybody in this room. We had a very sensible debate yesterday. There is more that we share in terms of penal policy than that which separates us. We are all seeking the same objectives. I am pleased with what the Minister said about the rehabilitation of offenders. It is high time that we looked at that again to see how we can improve things. It is not just a case of wiping the slate clean. As the Minister knows, we need to come to terms with a whole range of issues associated with transition, and I look forward to talking with him further about those.
At some point, we must accept that the custody system does not do what we pay it to do. We pay enormous amounts of money for it. There must be better alternatives. We should recognise the damage that it potentially does to young people. In that age group, only those who must be shut away—because it is only by shutting them away that we can protect the public—should be given standard custodial sentences. I do not dispute that there may be other secure sentencing possibilities that we should use instead, but it seems futile to spend an enormous amount of money on a system that has a virtually 100 per cent. reoffending rate. Nobody would plan a public policy with that little effect, but still we carry on with it and expand it in increasing numbers. However, the hour is late and it is time we moved on. I beg to ask leave to withdraw the motion.

Nicholas Winterton: The hon. Member for Somerton and Frome—[Hon. Members: “ Hooray”]—seeks leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 55

Anti-social behaviour orders: reporting restrictions
‘(1) Omit sections 1(10D), 1(10E) (anti-social behaviour orders) and 1C(9C) (orders on conviction in criminal proceedings) of the Crime and Disorder Act 1998 (c.37).
(2) In section 1C(9) of that Act (orders about anti-social behaviour on conviction in criminal proceedings) omit “(10D), (10E)”.
(3) After section 49(2)(d) of the Children and Young Persons Act 1933 (c.12) (restrictions on reports of proceedings in which children or young persons are concerned) insert—
“(e) any proceedings under the Crime and Disorder Act 1998.”.’.—[Mr. Heath.]

Brought up, and read the First time.

David Heath: I beg to move, That the clause be read a Second time.

Nicholas Winterton: With this it will be convenient to discuss new clause 56—Anti-social behaviour orders —
‘(1) Section 1 of the Crime and Disorder Act 1998 (c. 37) (prevention of crime and disorder) is amended as follows.
(2) In subsection (7) at the end insert “or in the case of persons under 18 not less than three months”.
(3) In subsection (10) after “if without reasonable excuse a person” insert “over the age of 18 years”.
(4) In subsection (10) at the end insert “or
(c) in the case of a person below the age of 18 years, a reprimand, warning, youth conditional warning or any sentence of the court commensurate with the seriousness of the offence other than imprisonment,”.
(5) In subsection (11) after “Where a person” insert “over the age of 18 years”.’.

David Heath: I promise that this will be the last group that I speak to.
The two new clauses deal with antisocial behaviour orders and their application to young people. We have been reminded on several occasions that it was not the original intention for ASBOs, but they have become principally a disposal for young people rather than adults, which is perhaps perverse. New clause 55 deals with something that I do not expect Ministers to agree with me about, because they have disagreed on the last two occasions that we have debated the matter—in the context of the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. However, that will not stop me from raising the issue again.
In the case of criminal offences, we have a reporting restriction for children. It has been there for 70 years, it is an important part of our criminal justice system, but yet it does not apply to ASBOs, either when they are made, or when they are breached. These children, when brought before a court, can have their faces spread all over every newspaper and even on a notice board in a supermarket. Yet if they commit a more serious crime and are given a criminal sentence ab initio, that will not happen. It seems perverse that we deal with such matters in different ways, and a variety of people have brought attention to the subject.
I do not expect the Committee to be hugely swayed by the opinion of Alvaro Gil-Robles, the Human Rights Commissioner of the Council of Europe, although he is an estimable gentleman and a colleague of mine on the Parliamentary Assembly of the Organisation for Security and Co-operation in Europe. He specifically raised the issue, saying that it is,
“entirely disproportionate to aggressively inform members of the community who have no knowledge of the offending behaviour, and who are not affected by it, of the application of ASBOs. It seems to me that they have no business and no need to know.”
That is his view, and it is perfectly proper for the Government and the Committee to take a different view. However, I think that it is disproportionate and that it is in stark distinction to the way that we deal with real criminal offences, as opposed to those that fall below the criminal standard of proof. It seems extraordinary that we make that division in the case of children. In the case of adults, I have no problem. If adults commit antisocial behaviour, naming and shaming them is all part of the process, but I am not sure that that is the right way for civilised society to deal with young people and children as young as 10.
New clause 56 deals with the period of an ASBO, and seeks to extend the discretion of the court when dealing with a person aged under 18, so that the minimum period can be reduced to three months. That would enable a short, objective lesson in the form of an ASBO to be given to a child, without it necessarily extending to the two-year minimum period. That, too, seems a sensible discretion to leave the court when it deals with a very young offender—I suppose that we call them offenders when we are talking about ASBOs. It is a moot point whether they are offenders or potential offenders when such a civil remedy is applied. In any case, the courts should have the discretion to do what they see fit in the case of a young person, and a three-month minimum period for the order would be appropriate.
The second part of the new clause deals with what happens in the event of a breach. Again, we return to the matter of custody. Is that really the answer for a breach of an ASBO if it has not been established as necessary for the protection of the public from harm? I doubt it, and if a young person is in breach of an ASBO, better and more appropriate disposals should be available to the court and used rather than sending a young person into custody, where we know what will happen—we have just discussed it. They go in, come out and commit an offence. That is not a sensible way to deal with someone who persistently causes problems through antisocial behaviour.
I am not arguing against ASBOs; as the Under-Secretary of State for the Home Department knows, we have always been open to the view that they can work under certain circumstances. Right from the start, we did not oppose them. However, the way in which they are used has always been open to question, and we have always wanted to engage in discussion with the Government on how they can best be used.

Vernon Coaker: I have a couple of brief comments on the new clauses. The context of the debates that we have had in the past hour or so is that none of us wants to see our young people in prison for the sad reasons that we have heard about. We want them to be diverted from antisocial and criminal behaviour. We must consider how we can effectively do that and what to do to ensure that we achieve it. If we really mean that, every single one of us in the room has a lot of work to do.
Out there, diversion and community punishment, and working with young people who commit offences instead of imprisoning them—restorative justice and so on—is a big matter for argument and a debate that needs to be won. The terms of trade are changing, and the debates that we have had in the Committee and elsewhere in Parliament show that parliamentary opinion, and perhaps some parts of public opinion to an extent, are moving. The work of my two ministerial colleagues in the Ministry of Justice has helped to shape that debate and move it forward.

Alun Michael: My hon. Friend is absolutely correct, and it is good to see some movement in the direction of saying that laws ought to prevent what they forbid, which is precisely what the ASBO is designed to do. It is a measure of prevention, not punishment.

Vernon Coaker: That is an excellent point, and I thank my right hon. Friend for it. That is the whole purpose of the civil order—not to punish, but to prevent.
After that brief introduction, I shall respond briefly to the comments made by the hon. Member for Somerton and Frome. There is almost a contradiction between what I said a moment ago and what I am about to say, in that I do believe that the courts need discretion in some of the cases referred to by the hon. Gentleman. For example, in respect of reporting restrictions when antisocial behaviour orders are given, it is not automatic that the court should publicise the names—it does not have to name and shame. The court has the power to say, “We do not think it appropriate in these circumstances for the name of that young person to be given, for the following reasons.” The courts would no doubt take factors such as vulnerability into account. However, in some circumstances, for the prevention of harm in communities, including the prevention of harm to other young people—young people are, by and large, the victims of crime—naming may sometimes be necessary. I ask the hon. Gentleman to reflect on that point.
On reducing the minimum duration of antisocial behaviour orders from two years to three months, the Committee will know that the Government have moved some way toward the sorts of issues that the hon. Gentleman raised. The Bill now allows for an annual review. Although it does not go fully to the three months’ duration wished for, it has started to move towards it. Where there was an expectation that a review would be held, we have made an annual review a statutory requirement—a statutory duty. Again, progress has been made.
One of the most difficult questions, particularly in the context of today’s debate, is that of not having the option of custody for breach of ASBOs. I do not particularly want young people to be put in prison, nor do I want them to be imprisoned for breach of an ASBO, but I believe that that must be an option. Let me cite a study that shows how difficult the subject can be. The Youth Justice Board conducted a study in December 2004—admittedly, a couple of years ago—in which it considered 43 young people who had received custody for breach of ASBOs. Between them, those young people had committed a total of 1,779 offences. Ministers receive briefings all the time, but when I read that I was astonished and shocked.
When I say that custody is available as a sanction for breach of an ASBO, hon. Members often say, “Yes, but there has to be a lot of other offences before it happens.” I was shocked at that figure. It suggests that many of the interventions that my hon. Friends are trying to introduce earlier in the process need to be considered in order to discover what works. However, there is a problem: what do you do with people who have committed so many offences, when every other alternative has no doubt been tried by the police, the youth offending teams and others? It seems to me that, in those circumstances, we are left with no choice.
The question then is what sort of environment are those young people being sent to if they breach their ASBO and are sent into custody? Again, the debate has moved on; we are moving away from saying that they should just be locked up and given bread and water. There is a growing mature opinion says that if people— particularly the young—breach their ASBOs, there must be a better option than the traditional type of environment. Although it might have to be a secure environment, perhaps it could have a better rehabilitative element that would command public confidence.
Although I understand the principles and substance of the points set out by the hon. Member for Somerton and Frome, I believe that the custody option should be available as the last resort for those who breach an ASBO. We have tried to move some way towards a minimum term in the annual review that we have introduced in this Bill. With those comments, will the hon. Gentleman consider withdrawing his new clauses?

David Heath: I am grateful to the Minister for sustaining the quality of debate right to the end of our proceedings. This is almost a coda to what we started a long time ago. I hope that he and his colleagues are right about the alternative structures that will be put in place if the Bill is enacted and that they will be effective in doing what we as a Committee all want them to do.
I do not agree with the Government about reporting restrictions, but the Minister knows that. I accept what he said about the minimum period. However, I do not think that people should be given a custodial sentence for breach of ASBOs. They should be given a custodial sentence if that is necessary for the protection of the public as a result of the offences that they have committed. It is a subtle but real difference. Again, we must agree to differ on that. Having said that, I am grateful to the Minister for responding to the points that I have made and I seek leave to withdraw the new clause.

Motion and clause, by leave, withdrawn.

New Schedule 1

‘Special rules relating to providers of information society services

Domestic service providers: extension of liability
1 (1) This paragraph applies where a service provider is established in England and Wales or Northern Ireland (a “domestic service provider”).
(2) Section 64(1) applies to a domestic service provider who—
(a) is in possession of an extreme pornographic image in an EEA state other than the United Kingdom, and
(b) is in possession of it there in the course of providing information society services,
as well as to persons (of any description) who are in possession of such images in England and Wales or Northern Ireland.
(3) In the case of an offence under section 64, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales or Northern Ireland, and
(b) the offence may for all incidental purposes be treated as having been committed at any such place.
(4) Nothing in this paragraph is to be read as affecting the operation of any of paragraphs 3 to 5.

Non-UK service providers: restriction on institution of proceedings
2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 64 may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective;
(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective; and
(c) is proportionate to that objective.
(4) “The public interest objective” means the pursuit of public policy.

Exceptions for mere conduits
3 (1) A service provider is not capable of being guilty of an offence under section 64 in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or
(b) the transmission in a communication network of information provided by a recipient of the service,
if the condition in sub-paragraph (2) is satisfied.
(2) The condition is that the service provider does not—
(a) initiate the transmission,
(b) select the recipient of the transmission, or
(c) select or modify the information contained in the transmission.
(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and
(b) the transmission of information in a communication network,
includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.
(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.

Exception for caching
4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 64 in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and
(b) the condition in sub-paragraph (3) is satisfied.
(3) The condition is that the service provider—
(a) does not modify the information,
(b) complies with any conditions attached to having access to the information, and
(c) (where sub-paragraph (4) applies) expeditiously removes the information or disables access to it.
(4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,
(b) access to it has been disabled, or
(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.

Exception for hosting
5 (1) A service provider is not capable of being guilty of an offence under section 64 in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service, if—
(a) the service provider had no actual knowledge when the information was provided that it contained offending material, or
(b) on obtaining actual knowledge that the information contained offending material, the service provider expeditiously removed the information or disabled access to it.
(2) “Offending material” means material the possession of which constitutes an offence under section 64.
(3) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.

Interpretation
6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Extreme pornographic image” has the same meaning as in section 64.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and
(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;
and “the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).
(4) “Recipient”, in relation to a service, means any person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of construing references in this Schedule to a service provider who is established in a part of the United Kingdom or in some other EEA state—
(a) a service provider is established in a particular part of the United Kingdom, or in a particular EEA state, if the service provider—
(i) effectively pursues an economic activity using a fixed establishment in that part of the United Kingdom, or that EEA state, for an indefinite period, and
(ii) is a national of an EEA state or a company or firm mentioned in Article 48 of the EEC Treaty;
(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;
(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider’s activities relating to that service.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 2

‘Hatred on the grounds of sexual orientation
1 Part 3A of the Public Order Act 1986 (c. 64) (hatred against persons on religious grounds) has effect subject to the following amendments.
2 In the heading for Part 3A at the end insert “or grounds of sexual orientation”.
3 In the italic cross-heading before section 29A at the end insert “and “hatred on the grounds of sexual orientation””.
4 After that section insert—
“29AB Meaning of “hatred on the grounds of sexual orientation”
In this Part “hatred on the grounds of sexual orientation” means hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both).”
5 In the italic cross-heading before section 29B at the end insert “or hatred on the grounds of sexual orientation”.
6 (1) Section 29B (use of words or behaviour or display of written material) is amended as follows.
(2) In subsection (1), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
(3) Omit subsection (3).
7 In section 29C(1) (publishing or distributing written material), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
8 In section 29D(1) (public performance of play), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
9 In section 29E(1) (distributing, showing or playing a recording), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
10 In section 29F(1) (broadcasting or including programme in programme service), after “religious hatred” insert “or hatred on the grounds of sexual orientation”.
11 In section 29G(1) (possession of inflammatory material), for “religious hatred to be stirred up thereby” substitute “thereby to stir up religious hatred or hatred on the grounds of sexual orientation”.
12 (1) Section 29H (powers of entry and search) is amended as follows.
(2) In subsection (1), omit “in England and Wales”.
(3) Omit subsection (2).
13 (1) Section 29I (power to order forfeiture) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), omit “in the case of an order made in proceedings in England and Wales,”; and
(b) omit paragraph (b).
(3) Omit subsection (4).
14 In section 29K(1) (savings for reports of parliamentary or judicial proceedings), for “or in the Scottish Parliament” substitute “, in the Scottish Parliament or in the National Assembly for Wales”.
15 (1) Section 29L (procedure and punishment) is amended as follows.
(2) In subsections (1) and (2), omit “in England and Wales”.
(3) In subsection (3), in paragraph (b), for “six months” substitute “12 months”.
(4) After that subsection insert—
“(4) In subsection (3)(b) the reference to 12 months shall be read as a reference to 6 months in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003.”
16 In section 29N (interpretation), after the definition of “dwelling” insert—
““hatred on the grounds of sexual orientation” has the meaning given by section 29AB;”.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 3

‘Sexual offences: grooming and adoption

Meeting a child following sexual grooming
1 In section 15(1) of the Sexual Offences Act 2003 (c. 42) (meeting a child following sexual grooming etc) for paragraphs (a) and (b) substitute—
“(a) A has met or communicated with another person (B) on at least two occasions and subsequently—
(i) A intentionally meets B,
(ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or
(iii) B travels with the intention of meeting A in any part of the world,
(b) A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,”.

Adoption
2 The Sexual Offences Act 2003 (c. 42) has effect subject to the following amendments.
3 In section 27(1)(b) (family relationships) after “but for” insert “section 39 of the Adoption Act 1976 or”.
4 In section 29(1)(b) (sections 25 and 26: sexual relationships which pre-date family relationships) after “if” insert “section 39 of the Adoption Act 1976 or”.
5 (1) Section 64 (sex with an adult relative: penetration) is amended as follows.
(2) In subsection (1) after “(A)” insert “(subject to subsection (3A))”.
(3) In subsection (3) after “In subsection (2)—” insert—
“(za) “parent” includes an adoptive parent;
(zb) “child” includes an adopted person within the meaning of Chapter 4 of Part 1 of the Adoption and Children Act 2002;”.
(4) After that subsection insert—
“(3A) Where subsection (1) applies in a case where A is related to B as B’s child by virtue of subsection (3)(zb), A does not commit an offence under this section unless A is 18 or over.”
(5) After subsection (5) insert—
“(6) Nothing in—
(a) section 47 of the Adoption Act 1976 (which disapplies the status provisions in section 39 of that Act for the purposes of this section in relation to adoptions before 30 December 2005), or
(b) section 74 of the Adoption and Children Act 2002 (which disapplies the status provisions in section 67 of that Act for those purposes in relation to adoptions on or after that date),
is to be read as preventing the application of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 for the purposes of subsection (3)(za) and (zb) above.”
6 (1) Section 65 (sex with an adult relative: consenting to penetration) is amended as follows.
(2) In subsection (1) after “(A)” insert “(subject to subsection (3A))”.
(3) In subsection (3) after “In subsection (2)—” insert—
“(za) “parent” includes an adoptive parent;
(zb) “child” includes an adopted person within the meaning of Chapter 4 of Part 1 of the Adoption and Children Act 2002;”.
(4) After that subsection insert—
“(3A) Where subsection (1) applies in a case where A is related to B as B’s child by virtue of subsection (3)(zb), A does not commit an offence under this section unless A is 18 or over.”
(5) After subsection (5) insert—
“(6) Nothing in—
(a) section 47 of the Adoption Act 1976 (which disapplies the status provisions in section 39 of that Act for the purposes of this section in relation to adoptions before 30 December 2005), or
(b) section 74 of the Adoption and Children Act 2002 (which disapplies the status provisions in section 67 of that Act for those purposes in relation to adoptions on or after that date),
is to be read as preventing the application of section 39 of the Adoption Act 1976 or section 67 of the Adoption and Children Act 2002 for the purposes of subsection (3)(za) and (zb) above.”
7 In section 47(1) of the Adoption Act 1976 (c. 36) (disapplication of section 39 (status conferred by adoption) for the purposes of miscellaneous enactments) for “sections 10 and 11 (incest) of the Sexual Offences Act 1956” substitute “or sections 64 and 65 of the Sexual Offences Act 2003 (sex with an adult relative)”.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 4

‘Section 327A of the Criminal Justice Act 2003: meaning of “child sex offence”
The following is the Schedule to be inserted as Schedule 34A to the Criminal Justice Act 2003 (c. 44)—

Child sex offences for purposes of section 327A

Offences under provisions repealed by Sexual Offences Act 2003
1 An offence under—
(a) section 5 or 6 of the Sexual Offences Act 1956 (intercourse with girl under 13 or 16), or
(b) section 28 of that Act (causing or encouraging the prostitution of, intercourse with or indecent assault on girl under 16).
2 An offence under any of—
(a) section 1 of that Act (rape),
(b) section 10 of that Act (incest by a man), and
(c) sections 12 to 16 of that Act (buggery, indecency between men, indecent assault and assault with intent to commit buggery),
where the victim or (as the case may be) the other party was under 18 at the time of the offence.
3 An offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14).
4 An offence under section 9 of the Theft Act 1968 of burglary with intent to commit rape where the intended offence was an offence against a person under 18.
5 An offence under section 54 of the Criminal Law Act 1977 (incitement of child under 16 to commit incest).
6 An offence under section 3 of the Sexual Offences (Amendment) Act 2000 (abuse of position of trust).

Other offences
7 An offence under any of—
(a) sections 5 to 8 of the Sexual Offences Act 2003 (rape and other offences against children under 13),
(b) sections 9 to 15 of that Act (child sex offences),
(c) sections 16 to 19 of that Act (abuse of position of trust),
(d) sections 25 and 26 of that Act (familial child sex offences), and
(e) sections 47 to 50 of that Act (abuse of children through prostitution and pornography).
8 An offence under any of—
(a) sections 1 to 4 of that Act (rape, assault and causing sexual activity without consent),
(b) sections 30 to 41 of that Act (persons with a mental disorder impeding choice, inducements etc to persons with a mental disorder, and care workers for persons with a mental disorder), and
(c) section 61 of that Act (administering a substance with intent),
where the victim of the offence was under 18 at the time of the offence.
9 An offence under section 62 or 63 of that Act (committing an offence with intent to commit a sexual offence and trespass with intent to commit a sexual offence) where the intended offence was an offence against a person under 18.
10 An offence under section 66 or 67 of that Act (exposure and voyeurism) where the victim or intended victim of the offence was under 18 at the time of the offence.
11 An offence under—
(a) section 1 of the Protection of Children Act 1978 (indecent photographs of children), or
(b) section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child).
12 An offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (indecent or obscene articles) where the prohibited goods included any indecent photograph showing a person under 18.
13 An offence under section 64 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images) in relation to an image showing a person under 18.

General
14 A reference in this Schedule to an offence (“offence A”) includes—
(a) a reference to an attempt to commit offence A,
(b) a reference to a conspiracy to commit offence A,
(c) a reference to incitement to commit offence A,
(d) a reference to an offence under Part 2 of the Serious Crime Act 2007 in relation to which offence A is the offence (or one of the offences) which the person intended or believed would be committed, and
(e) a reference to aiding and abetting, counselling or procuring the commission of offence A.
15 A reference in this Schedule to an offence (“offence A”) includes—
(a) a reference to an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 as respects which the corresponding civil offence (within the meaning given by the section in question) is offence A, and
(b) a reference to an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is offence A.”.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 5

‘Penalties suitable for enforcement in England and Wales or Northern Ireland

Person residing in England and Wales
1 The financial penalty is suitable for enforcement in England and Wales if the certificate states that the person required to pay the penalty is normally resident in England and Wales.

Person residing in Northern Ireland
2 The financial penalty is suitable for enforcement in Northern Ireland if the certificate states that the person required to pay the penalty is normally resident in Northern Ireland.

Person having property etc. in England and Wales
3 The financial penalty is suitable for enforcement in England and Wales if—
(a) the certificate states that the person required to pay the penalty has property or a source of income in England and Wales, and
(b) the certificate does not state—
(i) that the person has property or a source of income in Northern Ireland or Scotland, or
(ii) that the person is normally resident in the United Kingdom.

Person having property etc. in Northern Ireland
4 The financial penalty is suitable for enforcement in Northern Ireland if—
(a) the certificate states that the person required to pay the penalty has property or a source of income in Northern Ireland, and
(b) the certificate does not state—
(i) that the person has property or a source of income in England and Wales or Scotland, or
(ii) that the person is normally resident in the United Kingdom.

Person having property etc. in England and Wales and Northern Ireland
5 (1) This paragraph applies if—
(a) the certificate states that the person required to pay the penalty has property or a source of income in England and Wales,
(b) the certificate also states that the person has property or a source of income in Northern Ireland, and
(c) the certificate does not state —
(i) that the person has property or a source of income in Scotland, or
(ii) that the person is normally resident in the United Kingdom.
(2) The financial penalty is suitable for enforcement in England and Wales unless it is suitable for enforcement in Northern Ireland by virtue of sub-paragraph (3).
(3) The financial penalty is suitable for enforcement in Northern Ireland if the Lord Chancellor thinks that it is more appropriate for the penalty to be enforced in Northern Ireland than in England and Wales.

Person having property etc. in England and Wales and Scotland
6 (1) This paragraph applies if—
(a) the certificate states that the person required to pay the penalty has property or a source of income in England and Wales,
(b) the certificate also states that the person has property or a source of income in Scotland, and
(c) the certificate does not state —
(i) that the person has property or a source of income in Northern Ireland, or
(ii) that the person is normally resident in the United Kingdom.
(2) The financial penalty is suitable for enforcement in England and Wales unless sub-paragraph (3) applies.
(3) This sub-paragraph applies if—
(a) the Lord Chancellor was given the certificate by the competent authority or central authority of another member State (and not by the central authority for Scotland), and
(b) the Lord Chancellor thinks that it is more appropriate for the financial penalty to be enforced in Scotland than in England and Wales.

Person having property etc. in Northern Ireland and Scotland
7 (1) This paragraph applies if—
(a) the certificate states that the person required to pay the penalty has property or a source of income in Northern Ireland,
(b) the certificate also states that the person has property or a source of income in Scotland, and
(c) the certificate does not state —
(i) that the person has property or a source of income in England and Wales, or
(ii) that the person is normally resident in the United Kingdom.
(2) The financial penalty is suitable for enforcement in Northern Ireland unless sub-paragraph (3) applies.
(3) This sub-paragraph applies if—
(a) the Lord Chancellor was given the certificate by the competent authority or central authority of another member State (and not by the central authority for Scotland), and
(b) the Lord Chancellor thinks that it is more appropriate for the financial penalty to be enforced in Scotland than in Northern Ireland.

Person having property etc. in England and Wales, Scotland and Northern Ireland
8 (1) This paragraph applies if—
(a) the certificate states that the person required to pay the penalty has property or a source of income in Northern Ireland,
(b) the certificate also states that the person has property or a source of income in England and Wales and in Scotland, and
(c) the certificate does not state that the person is normally resident in the United Kingdom.
(2) The financial penalty is suitable for enforcement in England and Wales unless—
(a) the penalty is suitable for enforcement in Northern Ireland by virtue of sub-paragraph (3) or (4), or
(b) sub-paragraph (5) applies.
(3) The financial penalty is suitable for enforcement in Northern Ireland if—
(a) the Lord Chancellor was given the certificate by the competent authority or central authority of another member State (and not by the central authority for Scotland),
(b) the Lord Chancellor thinks that it is more appropriate for the financial penalty to be enforced in Northern Ireland than in England and Wales or Scotland.
(4) The financial penalty is suitable for enforcement in Northern Ireland if—
(a) the Lord Chancellor was given the certificate by the central authority for Scotland, and
(b) the Lord Chancellor thinks that it is more appropriate for the financial penalty to be enforced in Northern Ireland than in England and Wales.
(5) The sub-paragraph applies if—
(a) the Lord Chancellor was given the certificate by the competent authority or central authority of another member State (and not by the central authority for Scotland), and
(b) the Lord Chancellor thinks that it is more appropriate for the financial penalty to be enforced in Scotland than in England and Wales or Northern Ireland.

Interpretation
9 Where the person is a body corporate, this Schedule applies as if—
(a) the reference in paragraph 1 to the person being normally resident in England and Wales were a reference to the person having its registered office in England and Wales,
(b) the reference in paragraph 2 to the person being normally resident in Northern Ireland were a reference to the person having its registered office in Northern Ireland, and
(c) any reference to the person being normally resident in the United Kingdom were a reference to the person having its registered office in the United Kingdom.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 6

‘The Northern Ireland Commissioner for Prison Complaints

Appointment and removal from office
1 Her Majesty may appoint a person to be the Commissioner.
2 (1) A person appointed as Commissioner shall hold office for such term, not exceeding five years, as may be specified in the terms of appointment.
(2) At the end of that term the person concerned is eligible for re-appointment for a further period not exceeding five years.
(3) A person may not be re-appointed for a third consecutive term unless, by reason of special conditions, such re-appointment is desirable in the public interest.
3 (1) The Commissioner may be relieved of office by Her Majesty at the Commissioner’s own request or removed from office by Her Majesty in consequence of Addresses from both Houses of Parliament.
(2) Her Majesty may declare the office of Commissioner to have been vacated if satisfied that the person appointed is incapable for medical reasons of performing the functions of that office.

Remuneration, pensions and other benefits
4 The Secretary of State shall pay the Commissioner such remuneration and such travelling and other allowances as the Secretary of State may determine.
5 The Secretary of State shall pay to or in respect of a person who holds or has held office as Commissioner such pension, allowances or gratuities as the Secretary of State may determine.

Appointment of acting Commissioner
6 (1) Where the office of Commissioner becomes vacant, the Secretary of State may appoint a person as acting Commissioner.
(2) The power under sub-paragraph (1) may not be exercised after the end of the period of two years beginning with the day on which the vacancy arose.
7 (1) Any person holding office as acting Commissioner shall cease to hold that office—
(a) on the appointment of a new Commissioner; or
(b) at the end of the period of two years beginning with the day on which the vacancy arose.
(2) Otherwise, a person appointed as acting Commissioner holds office in accordance with the terms of appointment.
8 A person holding office as acting Commissioner is to be treated for all purposes (apart from those of paragraphs 1 to 7) as the Commissioner.

The Commissioner’s staff
9 The Commissioner’s staff shall be provided by (or in pursuance of arrangements made by) the Secretary of State.

Delegation of functions
10 (1) Any function of the Commissioner may be performed on behalf of the Commissioner by an authorised member of staff (but only to the extent that the person concerned is authorised to do so).
(2) In sub-paragraph (1) “authorised member of staff” means a member of the Commissioner’s staff who is authorised by the Commissioner to exercise that function.

Advisers
11 (1) The Commissioner may obtain advice to assist in the performance of any of the Commissioner’s functions from any person who appears to the Commissioner to be qualified to give it.
(2) The Commissioner may pay fees or allowances to any person in relation to the provision of advice under this paragraph.

Annual and other reports
12 (1) The Commissioner—
(a) shall publish a general report on the performance of the Commissioner’s functions during each year (an “annual report”);
(b) may publish other reports with respect to those functions.
(2) An annual report must be published as soon as may be practicable after the end of the year to which it relates.
(3) The Commissioner shall send a copy of each report under this paragraph to the Secretary of State.
(4) The Secretary of State shall lay before Parliament—
(a) a copy of each annual report,
(b) a copy of any other report under this paragraph which is sent with a request for it to be so laid,
and shall do so as soon as practicable after receiving a copy of the report concerned.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 7

‘the Northern Ireland Commissioner for Prison Complaints: complaints’ remit

Part 1

The specified matters
1 Any matter relating to the way in which a person has been treated at any applicable premises while being held there.
2 Any matter relating to the way in which a person has been treated by prison officers or prisoner custody officers while in their custody, or under their control or escort, anywhere in the world.
3 Any matter relating to the exercise, in relation to a person who has been charged with or convicted of an offence, of any statutory function of the Secretary of State relating to applicable premises or persons held there.

Part 2

Supplementary
1 In this Schedule, “statutory function” means functions conferred by or under any Act or by or under Northern Ireland legislation (including, in the case of prison officers, functions exercisable by virtue of section 8 of the Prison Act (Northern Ireland) 1953 (N.I. 18)).
2 The matters covered by paragraph 2 include matters affecting a person who has been charged with and convicted of an offence which relate to the exercise of the statutory functions of a prison officer or a prison custody officer.
3 In paragraph 3 the references to the Secretary of State are references to the Secretary of State having responsibility for prisons in Northern Ireland.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 8

‘The Northern Ireland Commissioner for Prison Complaints: deaths remit
1 A death of a person at any applicable premises while being held there.
2 A death of a person while in the custody, or under the control or escort, of prison officers or prisoner custody officers anywhere in the world.
3 A death of a person which the Commissioner is satisfied should be investigated because it is or may be linked to events which have occurred—
(a) at any applicable premises while that person was being held there; or
(b) while that person was in the custody, or under the control or escort, of prison officers or prisoner custody officers anywhere in the world.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 9

‘The Northern Ireland Commissioner for Prison Complaints: controlling authorities
The Secretary of State.
Governors of prisons, young offender centres and remand centres in Northern Ireland.
An independent monitoring board appointed under section 10 of the Prisons Act (Northern Ireland) 1953 (N.I. 18).
Persons with whom the Secretary of State has made arrangements under section 118 of the Criminal Justice and Public Order Act 1994 (c. 33).’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 10

‘Appeals in criminal cases

Part 1

Amendments to the Criminal Appeal Act 1968
1 The Criminal Appeal Act 1968 (c. 19) has effect subject to the following amendments.

Time limit on grant of certificates of fitness for appeal
2 In section 1 (appeal against conviction), in subsection (2)(b) after “if” insert “, within 28 days from the date of the conviction,”.
3 In section 11 (supplementary provisions as to appeal against sentence), in subsection (1A)—
(a) after “if” insert “, within 28 days from the date on which the sentence was passed,”, and
(b) for “the sentence” substitute “it”.
4 In section 12 (appeal against verdict of not guilty on ground of insanity), in subsection (1)(b) after “if” insert “, within 28 days from the date of the verdict,”.
5 In section 15 (appeal against finding of disability), in subsection (2)(b) after “if” insert “, within 28 days from the date of the finding that the accused did the act or made the omission charged,”.

Powers of Court to substitute different sentence
6 (1) Section 4 (sentence when appeal allowed on part of indictment) is amended as follows.
(2) For the heading substitute “Power to re-sentence where appellant remains convicted of related offences”.
(3) For subsection (1) substitute—
“(1) This section applies where—
(a) two or more related sentences are passed,
(b) the Court of Appeal allow an appeal against conviction in respect of one or more of the offences for which the sentences were passed (“the related offences”), but
(c) the appellant remains convicted of one or more of those offences.”
(4) In subsection (2)—
(a) for “in respect of any count on which the appellant remains convicted” substitute “in respect of any related offence of which the appellant remains convicted”, and
(b) omit “for the offence of which he remains convicted on that count”.
(5) In subsection (3)—
(a) for “on the indictment as a whole” substitute “for all the related offences (taken as a whole)”, and
(b) for “for all offences of which he was convicted on the indictment” substitute “for all the related offences”.
(6) After subsection (3) insert—
“(4) For the purposes of subsection (1)(a), two or more sentences are related if—
(a) they are passed on the same day,
(b) they are passed on different days but the court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence, or
(c) they are passed on different days but in respect of counts on the same indictment.
(5) Where—
(a) two or more sentences are related to each other by virtue of subsection (4)(a) or (b), and
(b) any one or more of those sentences is related to one or more other sentences by virtue of subsection (4)(c),
all the sentences are to be treated as related for the purposes of subsection (1)(a).”

Interim hospital orders
7 The following provisions (which relate to the effect of interim hospital orders made by the Court of Appeal) are omitted—
(a) section 6(5) and the definition of interim hospital order in section 6(7),
(b) section 11(6),
(c) section 14(5) and the definition of interim hospital order in section 14(7), and
(d) section 16B(3).
8 After section 30B (as inserted by section 26(5)) insert—
“30C Effect of interim hospital orders
(1) This section applies where the Court of Appeal—
(a) make an interim hospital order by virtue of any provision of this Part, or
(b) renew an interim hospital order so made.
(2) The court below shall be treated for the purposes of section 38(7) of the Mental Health Act 1983 (absconding offenders) as the court that made the order.”
9 In section 31 (powers of Court which are exercisable by single judge) after subsection (2) insert—
“(2ZA) The power of the Court of Appeal to renew an interim hospital order made by them by virtue of any provision of this Part may be exercised by a single judge in the same manner as it may be exercised by the Court.”

Evidence
10 (1) Section 23 (evidence) is amended as follows.
(2) In subsection (1) after “an appeal” insert “, or an application for leave to appeal,”.
(3) In that subsection, for paragraph (b) substitute—
“(b) order any witness to attend for examination and be examined before the Court (whether or not he was called in the proceedings from which the appeal lies); and”.
(4) After subsection (1) insert—
“(1A) The power conferred by subsection (1)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that subsection to—
(a) the Court;
(b) the appellant;
(c) the respondent.”
(5) In subsection (4) after “an appeal” insert “, or an application for leave to appeal,”.
(6) After subsection (5) insert—
“(6) In this section, “respondent” includes a person who will be a respondent if leave to appeal is granted.”

Powers of single judge
11 (1) Section 31 (powers of Court of Appeal which are exercisable by single judge) is amended as follows.
(2) In the heading, omit “under Part 1”.
(3) After subsection (2C) insert—
“(2D) The power of the Court of Appeal to grant leave to appeal under section 9(11) of the Criminal Justice Act 1987 may be exercised by a single judge in the same manner as it may be exercised by the Court.
(2E) The power of the Court of Appeal to grant leave to appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996 may be exercised by a single judge in the same manner as it may be exercised by the Court.”

Appeals against procedural directions
12 In section 31C (appeals against procedural directions), omit subsections (1) and (2).

Detention of defendant pending appeal to Supreme Court
13 (1) Section 37 (detention of defendant on appeal by Crown) is amended as follows.
(2) In subsection (2) for the words from “may make” to the end substitute “shall make—
(a) an order providing for his detention, or directing that he shall not be released except on bail (which may be granted by the Court as under section 36 above), so long as the appeal is pending, or
(b) an order that he be released without bail.”
(3) After subsection (2) insert—
“(2A) The Court may make an order under subsection (2)(b) only if they think that it is in the interests of justice that the defendant should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.”
(4) In subsection (3) for “this section” substitute “subsection (2)(a)”.
(5) In subsection (4) for “this section” (in each place where it occurs) substitute “subsection (2)(a)”.
(6) In subsection (4A) for “this section” (in the first place where it occurs) substitute “subsection (2)(a)”.
(7) For subsection (5) substitute—
“(5) The defendant shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—
(a) the Court of Appeal have made an order under subsection (2)(b), or
(b) the Court have made an order under subsection (2)(a) but the order has ceased to have effect by virtue of subsection (3) or the defendant has been released or discharged by virtue of subsection (4) or (4A).”

Part 2

Amendments to the Criminal Appeal (Northern Ireland) Act 1980
14 The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) has effect subject to the following amendments.

Time limit on grant of certificates of fitness for appeal
15 In section 1 (appeal against conviction), in paragraph (b) after “if” insert “, within 28 days from the date of the conviction,”.
16 In section 12 (appeal against finding of not guilty on ground of insanity), in subsection (1)(b) after “if” insert “, within 28 days from the date of the finding,”.
17 In section 13A (appeal against finding of unfitness to be tried), in subsection (2)(b) after “if” insert “, within 28 days from the date of the finding that the person did the act or made the omission charged,”.

Powers of Court to substitute different sentence
18 (1) Section 4 (alteration of sentence on appeal against conviction) is amended as follows.
(2) For subsection (1) substitute—
“(1) Subsection (1A) applies where—
(a) two or more related sentences are passed,
(b) the Court of Appeal allows an appeal against conviction in respect of one or more of the offences for which the sentences were passed (“the related offences”), but
(c) the appellant remains convicted of one or more of those offences.
(1A) The Court may, in respect of any related offence of which the appellant remains convicted, pass such sentence, in substitution for the sentence passed thereon at the trial, as it thinks proper and is authorised by law.”
(3) After subsection (2) insert—
“(3) For the purposes of subsection (1)(a), two or more sentences are related if—
(a) they are passed on the same day,
(b) they are passed on different days but the court in passing any one of them states that it is treating that one together with the other or others as substantially one sentence, or
(c) they are passed on different days but in respect of counts on the same indictment.
(4) Where—
(a) two or more sentences are related to each other by virtue of subsection (3)(a) or (b), and
(b) any one or more of those sentences is related to one or more other sentences by virtue of subsection (3)(c),
all the sentences are to be treated as related for the purposes of subsection (1)(a).”

Interim hospital orders
19 Section 10(6) (effect of interim hospital orders made by Court of Appeal) is omitted.
20 After section 29A (as inserted by section (Meaning of unsafe: Northern Ireland)(6)) insert—
“29B Effect of interim hospital orders
(1) This section applies where the Court of Appeal—
(a) makes an interim hospital order by virtue of any provision of this Part, or
(b) renews an interim hospital order so made.
(2) The Crown Court shall be treated for the purposes of Article 45(6) of the Mental Health Order (absconding offenders) as the court that made the order.”
21 In section 45 (powers of Court which are exercisable by single judge) after subsection (3) insert—
“(3ZA) The power of the Court of Appeal to renew an interim hospital order made by it by virtue of any provision of this Act may be exercised by a single judge in the same manner as it may be exercised by the Court.”

Evidence
22 (1) Section 25 (evidence) is amended as follows.
(2) In subsection (1) after “an appeal” insert “, or an application for leave to appeal,”.
(3) In that subsection, for paragraph (b) substitute—
“(b) order any witness to attend and be examined before the Court (whether or not he was called at the trial); and”.
(4) After subsection (1) insert—
“(1A) The power conferred by subsection (1)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that subsection to—
(a) the Court;
(b) the appellant;
(c) the respondent.”
(5) After subsection (3) insert—
“(4) In this section, “respondent” includes a person who will be a respondent if leave to appeal is granted.”
23 In section 26 (additional powers of Court), in subsection (1) after “an appeal” insert “, or an application for leave to appeal,”.

Detention of defendant pending appeal to Supreme Court
24 (1) Section 36 (detention of defendant on appeal by Crown) is amended as follows.
(2) In subsection (1) for the words from “may make” to the end substitute “shall make—
(a) an order providing for his detention, or directing that he shall not be released except on bail (which may be granted by the Court as under section 35 above), so long as the appeal is pending, or
(b) an order that he be released without bail.”
(3) After subsection (1) insert—
“(1A) The Court may make an order under subsection (1)(b) only if it thinks that it is in the interests of justice that the defendant should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.”
(4) In subsection (2) for “subsection (1)” substitute “subsection (1)(a)”.
(5) In subsection (3) for “this section” (in each place where it occurs) substitute “subsection (1)(a)”.
(6) In subsection (3A) for “this section” (in the first place where it occurs) substitute “subsection (1)(a)”.
(7) For subsection (4) substitute—
“(4) The defendant shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—
(a) the Court of Appeal has made an order under subsection (1)(b), or
(b) the Court has made an order under subsection (1)(a) but the order has ceased to have effect by virtue of subsection (2) or the defendant has been released or discharged by virtue of subsection (3) or (3A).”

Powers of single judge
25 (1) Section 45 (powers of Court of Appeal which are exercisable by single judge) is amended as follows.
(2) After subsection (3C) insert—
“(3D) The power of the Court of Appeal to grant leave to appeal under Article 8(11) of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988 may be exercised by a single judge in the same manner as it may be exercised by the Court.”

Part 3

Amendments of other acts

Detention of defendant pending appeal from High Court to Supreme Court
26 (1) Section 5 of the Administration of Justice Act 1960 (c. 65) (power to order detention or admission to bail of defendant) is amended as follows.
(2) In subsection (1) for the words from “may make” to the end substitute “shall make—
(a) an order providing for the detention of the defendant, or directing that he shall not be released except on bail (which may be granted by the court as under section 4 above), so long as the appeal is pending, or
(b) an order that the defendant be released without bail.”
(3) After subsection (1) insert—
“(1A) The court may make an order under subsection (1)(b) only if it thinks that it is in the interests of justice that the defendant should not be liable to be detained as a result of the decision of the Supreme Court on the appeal.”
(4) In subsection (3) for “subsection (1)” substitute “subsection (1)(a)”.
(5) In subsection (4) for “the said subsection (1)” substitute “the said subsection (1)(a)”.
(6) In subsection (4A) for “the said subsection (1)” substitute “the said subsection (1)(a)”.
(7) For subsection (5) substitute—
“(5) The defendant shall not be liable to be detained again as a result of the decision of the Supreme Court on the appeal if—
(a) the court has made an order under subsection (1)(b), or
(b) the court has made an order under subsection (1)(a) but the order has ceased to have effect by virtue of subsection (3) or the defendant has been released or discharged by virtue of subsection (4) or (4A).”

Variation of sentences by Crown Court
27 (1) Section 49 of the Judicature (Northern Ireland) Act 1978 (c. 23) (sentences imposed and other decisions made by Crown Court) is amended as follows.
(2) In subsection (2)—
(a) for “28 days” substitute “56 days”, and
(b) omit the words from “or, where subsection (3) applies,” to the end.
(3) After subsection (2) insert—
“(2A) The power conferred by subsection (1) may not be exercised in relation to any sentence or order if an appeal, or an application for leave to appeal, against that sentence or order has been determined.”
(4) Subsection (3) is omitted.
28 (1) Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (alteration of Crown Court sentence) is amended as follows.
(2) In subsection (1)—
(a) for “28 days” substitute “56 days”, and
(b) omit the words from “or, where subsection (2) below applies,” to the end.
(3) After subsection (1) insert—
“(1A) The power conferred by subsection (1) may not be exercised in relation to any sentence or order if an appeal, or an application for leave to appeal, against that sentence or order has been determined.”
(4) Subsections (2) and (3) are omitted.’.—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

New Schedule 11

‘Amendments to armed forces legislation

Part 1

Courts-Martial (Appeals) Act 1968
1 The Courts-Martial (Appeals) Act 1968 (c. 20) has effect subject to the following amendments.

Determination of appeals from Court Martial
2 (1) Section 12 (power to quash conviction as unsafe) is amended as follows.
(2) After subsection (1) insert—
“(1A) For the purposes of subsection (1)(a), the conviction is not unsafe if the Appeal Court think that there is no reasonable doubt about the appellant’s guilt.
(1B) Subsection (1A) does not require the Appeal Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the conviction to stand.”
(3) After subsection (1B) (inserted by sub-paragraph (2) above) insert—
“(1C) In determining for the purposes of subsection (1)(a) whether the conviction is unsafe the Appeal Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the conviction.”
3 (1) Section 21 (appeal against finding of not guilty by reason of insanity) is amended as follows.
(2) After subsection (1A) (as inserted by the Armed Forces Act 2006) insert—
“(1AA) For the purposes of subsection (1A)(a), the finding shall not be regarded as unsafe for a reason unrelated to the correctness of the finding of insanity if the Appeal Court think that there is no reasonable doubt that the appellant did the act or made the omission charged.
(1AB) Subsection (1AA) does not require the Appeal Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the finding to stand.”
(3) After subsection (1AB) (inserted by sub-paragraph (2) above) insert—
“(1AC) In determining for the purposes of subsection (1A)(a) whether the finding is unsafe the Appeal Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the finding.”
4 (1) Section 25 (disposal of appeal against finding of unfitness) is amended as follows.
(2) After subsection (1A) (as inserted by the Armed Forces Act 2006) insert—
“(1AA) For the purposes of subsection (1A)(a), a finding shall not be regarded as unsafe for a reason unrelated to the correctness of the finding that the appellant is unfit to stand trial if the Appeal Court think that there is no reasonable doubt that the appellant did the act or made the omission charged.
(1AB) Subsection (1AA) does not require the Appeal Court to dismiss the appeal if they think that it would seriously undermine the proper administration of justice to allow the finding to stand.”
(3) After subsection (1AB) (inserted by sub-paragraph (2) above) insert—
“(1AC) In determining for the purposes of subsection (1A)(a) whether a finding is unsafe the Appeal Court may, if they think it appropriate in all the circumstances of the case, disregard any development in the law since the date of the finding.”
5 In section 28 (evidence)—
(a) in subsection (2)(b) after “allowing” insert “or dismissing”, and
(b) in subsection (2)(c) for “which is the subject of the appeal” substitute “which is relevant to the determination of the appeal”.
6 Before section 36 (but after the cross-heading preceding it) insert—
“35A Evidence given after close of prosecution case
In determining an appeal under this Part, the Appeal Court shall not disregard any evidence solely on the ground that it was given after the judge advocate at the appellant’s trial wrongly permitted the trial to continue after the close of the evidence for the prosecution.”—[Mr. Coaker.]

Brought up, read the First and Second time, and added to the Bill.

Amendment made: No. 369, in title, line 4, after ‘Prisons’ insert
‘and the Northern Ireland Commissioner for Prison Complaints’.—[Mr. Hanson.]

Ordered.
That certain written evidence already reported to the House be appended to the proceedings of the Committee.—[Mr. Hanson.]

David Hanson: On a point of order, Sir Nicholas. We potentially have twenty-one minutes left to us. May I thank you and your co-Chairmen, Mr. O’Hara and Mr. Cook, for your diligence, charm, wit and efficiency in managing the Committee? This is an unusual type of early release for the Committee, but I am certainly glad that we have managed to get it because I can now get my train to north Wales with some ease.
On behalf of the whole Committee, may I thank the badge messengers, Mr. Sandall, our Clerk, Hansard, and our colleagues from the police. All have provided a particularly efficient service, especially given the number of amendments that have been tabled by the Government and by Opposition Members.
I particularly thank the Opposition Front Benchers—the hon. and learned Member for Harborough and the hon. Members for Enfield, Southgate, for Somerton and Frome and for Cambridge—for their diligence in testing the Government. I hope that they have found it not an unfruitful exercise. My hon. Friends the Under-Secretaries of State for the Home Department and for Justice and I have agreed to examine a number of the amendments that they have proposed. I also thank my two ministerial colleagues for their sterling support in this work, and my hon. Friend the Member for Tooting and his Opposition counterpart, the hon. Member for Ruislip-Northwood, for their work in the usual channels.
I particularly thank my hon. Friends the Members for Sedgefield and for Ealing, Southall for their commitment to the Bill. They won very hard fought by-elections during the summer. I am sure that they looked forward to spending forty-eight and a half hours in Committee in 16 sittings spread over two parliamentary Sessions, given that the Bill was carried over and has been in Committee since 16 October. I am sure that they dreamed of this day when they were tramping the streets of Trimdon and Ealing. I wish them well and thank them for their support. I also thank my hon. Friends who are not present for their commitment to the Bill and I thank Opposition Members whose contributions tested us in debate.
Finally, I want to thank the most important people in the room: the officials who have backed up the ministerial team; they have been superb. Hon. Members will have seen a constant stream of them coming through the Committee to support all three of us. They have done a sterling job. Perhaps I will give them tomorrow off before we start preparing the Bill for Report and for consideration in another place. I wish them a happy Christmas and new year.
I conclude by wishing you, Sir Nicholas, a very happy Christmas and a positive new year.

Edward Garnier: Further to that point of order, Sir Nicholas. I join the Minister in thanking you and your two co-Chairmen.
This comes with even greater heartfelt sincerity from the Opposition, as we do not have the benefit of the officials, whom I cannot see, but I know they exist somewhere in the background—I occasionally see a note being passed although I cannot see where it has come from—but I thank Mr. Sandall and his colleagues in the Public Bill Office, because without the assistance of the Clerk’s Department, running a Committee in opposition would be, not difficult, but impossible.
I also thank the Hansard reporters for their forbearance, their speed and their accuracy, and the police officers and the doorkeepers. As usual they have kept us in order and kept the show on the road. I am grateful to all of them.
It is fair to say that this has been an unhappy Bill, but not an unhappy Committee. I believe that there were 85 new clauses proposed for a Bill that already had 128 clauses, and 11 new schedules to add to the 23 that are already there. There must have been about 400 amendments on the amendment paper, the vast majority of which were tabled by the Government. The Bill has its genesis in two separate Departments and as a consequence, it is not the most coherent of measures. I described it on Second Reading as something of a plum-duff. The Minister of State thought that was jolly unfair and he complained that he had never had plum-duff.
I owe a huge debt of gratitude for their assistance to my hon. Friends the Members for Enfield, Southgate, for Ruislip-Northwood, for Kettering and for Broxbourne, as well as my colleagues on the Liberal Democrat Benches. We all wish that the Minister had had an opportunity to have plum-duff, as he would then have understood the accuracy of my analogy. I promised myself that I would make a plum-duff pudding for the Minister of State before the end of the Committee, but, sadly, I have not had time. Instead, I have been to the House of Commons shop and bought him a House of Commons whisky cake. It is full of nuts. I shall give it to him when the Committee is over. I want him to take it home, chew on it, enjoy every tasty morsel and understand that although it is not quite as good as a plum duff, it is as full of separate ingredients as a plum-duff might be.

Nicholas Winterton: Perhaps you should give it to him now so that he can enjoy it on the train—if you allow him to catch his train.

Edward Garnier: I am not quite sure about the etiquette for passing Christmas puddings across the Committee Room. The Minister will see that it is full of nuts, but if he delves in there, something edible might emerge. In the same way, when we delved into this Bill, one or two ideas emerged that are quite good, but it is held together with an awful lot of extraneous and not terribly helpful material.

Nicholas Winterton: Order. I do not wish to rule a distinguished barrister, or a judge, for that matter, out of order, but this is rather a long point of order.

Edward Garnier: Well, there we are. Let me conclude by thanking everybody for having given us a jolly wonderful time, and let us hope that we do not have to go through this again.

David Heath: Further to that point of order, Sir Nicholas. I, too, thank you and your co-Chairmen for your never-ending diligence in getting my constituency pronounced correctly. It is appreciated.
I associate myself and my hon. Friend the Member for Cambridge with the thanks that have already been given to everyone involved with the Committee. It would be otiose—to use the Under-Secretary of State for Justice’s and my favourite word—to repeat those thanks. These mini-Oscar ceremonies at the end of Committees can become very long—and now we are expected to give gifts. I feel hopelessly under-prepared for the occasion.
As the hon. and learned Gentleman said, this has been a good Committee on a mixed Bill, which has both its good parts and some elements that we shall continue to probe and oppose. My one parting shot is that there were times when we had to sit late to get through the business under an artificially truncated timetable. I hope that we will have sufficiently long on Report to do justice to the Bill, which is very long and has lots of disparate parts that we still need to consider in depth. That, if I may say so through you, Sir Nicholas, will require at least two days, but I shall make that point elsewhere. Thank you, very much.

Nicholas Winterton: This has been an excellent Committee. I am not allowed to comment on the Bill—I am totally impartial—but I want to thank in particular the Ministers and Opposition spokesmen for their tireless work and the tremendous amount of research and preparation that they have put into the Bill.
I thank all members of the Committee, and welcome in particular the new Members from Sedgefield, the former Prime Minister’s constituency, and Ealing, Southall. I hope that you have learned quite a lot from the Committee. I thank also my Clerk and all the Clerks who have helped, as well as Hansard, the police and the doorkeepers. It has been a very well run Committee.
Finally, I thank my co-Chairmen, Mr. O’Hara, and Mr. Cook for assisting. We have done a splendid job with the co-operation of all members of the Committee. I thank you all and wish you a happy Christmas and prosperous new year.

Bill, as amended, to be reported.

Committee rose at eleven minutes to Seven o’clock.